Doc. 10396

14 January 2005

Draft Convention for the prevention of terrorism

Request for an opinion

from the Committee of Ministers

Letter from the Chairman of the Ministers’ Deputies to the President of the Assembly dated 6 January 2005

Dear President,

With reference to my letter dated 9 December 2004, in which I informed you that that the Deputies decided (908th meeting, 7 December 2004) to authorise the consultation of the Parliamentary Assembly on the basis of the draft instrument on the prevention of terrorism resulting from the 6th meeting of CODEXTER (13-15 December 2004), I hereby have the honour to transmit the draft text to the Assembly.

I would again like to express my gratitude for the readiness of the Assembly to respond to the Deputies’ request to consider the draft legal instrument as speedily as possible.

Yours sincerely,

(signed) Krzysztof KOCEL

Chairman of the Ministers’ Deputies

Mr Peter SCHIEDER

President of the Parliamentary Assembly

of the Council of Europe

Strasbourg

DRAFT CONVENTION ON THE PREVENTION OF TERRORISM1

Preamble

The member States of the Council of Europe and the other States signatory hereto;

Considering that the aim of the Council of Europe is to achieve greater unity between its members;

Recognising the value of fostering co-operation with the other States Parties to this Convention;

Wishing to take effective measures to prevent acts of terrorism and to counter, in particular, public provocation to commit such acts, recruitment and training for terrorism;

Aware of the growing concern caused by the increase in acts of terrorism and the victimisation of a large number of persons and in this connection, reaffirming their profound solidarity with the victims of terrorism and their families;

Recalling the need to strengthen the fight against terrorism while respecting human rights and fundamental freedoms as well as other provisions of international law, including international humanitarian law;

§2

Recalling that terrorism has the purpose by its nature or context to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act;3

Have agreed as follows:

Article 1 – Terminology4

1.       For the purposes of this Convention, “act of terrorism” means any of the principal offences5 within the scope of and as defined in one of the treaties listed in the Annex.

2.       On depositing its instrument of ratification, acceptance, approval or accession, a State which is not a party to a treaty listed in the Annex may declare that, in the application of this Convention to the respective State Party, that treaty shall be deemed not to be included in the Annex. The declaration shall cease to have effect as soon as the treaty enters into force for the State having made such a declaration which shall notify the Secretary General of the Council of Europe of this entry into force.6

Article 2 – Purpose

The purpose of the present Convention is to enhance the efforts of States Parties in preventing acts of terrorism and their negative effects on the full enjoyment of the right to life and other human rights, both by measures to be taken at national level and through international co-operation, with due regard to the existing applicable multilateral or bilateral treaties or arrangements between the States Parties.

Article 3 – National prevention policies

1.       Each State Party shall take appropriate measures, particularly in the field of specialised training of law enforcement authorities and other bodies7, and in the fields of education, culture, information, media and raising public awareness, with a view to preventing the commission of acts of terrorism while respecting human rights and fundamental freedoms, as set forth in international law and practice, including the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms or any other instrument in the field of human rights that it is a Party to.8 9 10

2.       Each State Party shall take such measures as may be necessary to improve and develop the co-operation among national authorities with a view to preventing the commission of acts of terrorism and dealing with their effects, by, inter alia:

a. exchanging information;

b. improving the physical protection of persons and facilities;

c. enhancing training and coordination plans for civil emergencies.

3.       Each State Party shall encourage inter-religious and cross-cultural dialogue involving, where appropriate, non-governmental organisations and other elements of civil society with a view to preventing ethnical, religious or other tensions that might lead to the commission of acts of terrorism.

Article 3bis – International co-operation on prevention11

States Parties shall, as appropriate and with due account to their capabilities, assist and support each other with a view to enhancing their capacity to prevent the commission of acts of terrorism, including through exchange of information and best practice, as well as through training and other joint efforts of a preventive character.

Article 4 – Public provocation to commit an act of terrorism12

1.       For the purposes of this Convention, "public provocation to commit an act of terrorism” means the distribution, or otherwise making available, of a message to the public,13 with the intent to incite the commission of an act of terrorism, including where the message, although not directly advocating such acts, would be reasonably interpreted to have that effect, inter alia, by presenting an act of terrorism as necessary and justified.14 15

2.       Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law public provocation to commit an act of terrorism, as defined in paragraph 1, when committed unlawfully16 and intentionally,17 provided that the provocation causes an imminent danger or likelihood of one or more terrorist acts being committed. When considering whether such danger is caused, the nature of the author and of the addressee of the message as well as the context in which the offence is committed shall be taken into account.18

Article 5 – Recruitment for terrorism19

1.       For the purposes of this Convention, "recruitment for terrorism" means to solicit another person to participate in the commission of an act of terrorism, or to join an association or group, for the purpose of contributing to the commission of one or more acts of terrorism by the association or the group.20 21

2.       Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law recruitment for terrorism, as defined in paragraph 1, when committed unlawfully22 and intentionally.23

Article 6 – Training for terrorism24

1.       For the purposes of this Convention, “training for terrorism” means to provide instruction or training in the making or use of explosives, firearms or other weapons, or in any method or technique, for the purpose of carrying out an act of terrorism, knowing that the skills provided are intended to be used for this purpose.25

2.       Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law training for terrorism, as defined in paragraph 1, when committed unlawfully26 and intentionally.

Article 6bis – Non-reporting27

Article 7 – Ancillary offences28

1.        Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law if a person:

a.       Participates as an accomplice in an offence as set forth in Articles 4-6 of this Convention;

b.       Organizes or directs others to commit an offence as set forth in Articles 4-6 of this Convention;

c.       Contributes to the commission of one or more offences as set forth in Articles 4-6 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

2.       Each State Party shall also adopt such measures as may be necessary to establish as a criminal offence under its domestic law if a person attempts to commit an offence as set forth in Articles 5 and 6 of this Convention.

Article 7bis - Non application of the Convention29

This Convention shall not apply where any of the offences established in accordance with Articles 4-7 is committed within a single State, the alleged offender is a national of that State, and no other State has a basis under Article 14, paragraph 1 of this Convention, to exercise jurisdiction, except that provisions of Articles 17-21 of this Convention shall, as appropriate, apply in those cases.30 31

Article 8 – Sanctions and measures

1.       Each State Party shall adopt such measures as may be necessary to make the offences set forth in Articles 4-7 punishable by effective, proportionate and dissuasive penalties.

2.       Previous final convictions pronounced in foreign States for offences referred to in the present Convention may, to the extent permitted by domestic law, be taken into account for the purpose of determining the sentence in accordance with domestic law.32

Article 8bis – Confiscation33

Article 9 – Conditions and safeguards

1.       Each State Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 4-7 of this Convention are carried out consistently with the 34 rule of law, human rights and fundamental freedoms, in particular the right to freedom of expression, freedom of association and freedom of religion as set forth in international law and practice, including the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms or any other instrument in the field of human rights that it is a Party to.

2.       The establishment, implementation and application of the criminalisation under Articles 4-7 of this Convention should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society,35 and should exclude any form of arbitrariness or discriminatory or racist treatment.

Article 10 – Liability of legal entities36

1.       Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal entities for participation in the acts criminalised in Articles 4-7 of this Convention.37

2.       Subject to the legal principles of the State Party, the liability of legal entities may be criminal, civil or administrative.

3.       Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences.

4.       Each State Party shall, in particular, ensure that legal entities held liable in accordance with this Article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.38

Article 11 – Prevention of justification39

Article 11bis – Non abuse of the refugee status40 41

Article 12 – Protection, compensation and support of victims of acts of terrorism

Each State Party shall adopt such measures as may be necessary to protect and support the victims of acts of terrorism that have been committed within its own territory. These measures may include, through the appropriate national schemes and subject to domestic legislation, inter alia, financial assistance and compensation for victims of acts of terrorism and their close family members.

Article 13 – Duty to investigate42

1.       Upon receiving information that a person who has committed or who is alleged to have committed an offence within the scope of application of the present Convention may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domestic law to investigate the facts contained in the information.

2.       Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.

3.       Any person regarding whom the measures referred to in paragraph 2 are being taken shall be entitled to:

a. communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person’s rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;

b. be visited by a representative of that State;

c. be informed of that person’s rights under subparagraphs a. and b.

4.       The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5.       The provisions of paragraphs 3 and 4 of the present Article shall be without prejudice to the right of any State Party having a claim of jurisdiction in accordance with Article 14 paragraph 1 (b) to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.43

Article 14 – Jurisdiction

1.       Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in this Convention:

a.       when the offence is committed in the territory of that State;

b.       when the offence is committed by a national of that State;44

c.       in the case where the alleged offender is present in its territory and it does not extradite him or her to a State Party whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State.45

2.       Each State Party may also establish its jurisdiction over such offences when the offence is committed by a stateless person who has his or her habitual residence in the territory of that State.46

3.       This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.47

4.       When more than one Party claims jurisdiction over an alleged offence set forth in this Convention, the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution48.

Article 15 – Extradite or prosecute49

1.        The State Party in the territory of which the alleged offender is present shall, when it has jurisdiction in accordance with Article 14, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a serious nature under the law of that State.

2.       Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1.

Article 16 – Extradition50

1.       The offences set forth in Articles 4-7 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2.       When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in Articles 4-7. Extradition shall be subject to the other conditions provided by the law of the requested State.

3.       States Parties which do not make extradition conditional on the existence of a treaty shall recognise the offences set forth in Articles 4-7 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

4.        If necessary, the offences set forth in Articles 4-7 shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the States that have established jurisdiction in accordance with Article 14.

5.       The provisions of all extradition treaties and arrangements between States Parties with regard to offences set forth in Articles 4-7 shall be deemed to be modified as between States Parties to the extent that they are incompatible with this Convention.

Article 17 – General principles for international co-operation

1.       States Parties shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings in respect of the offences set forth in Articles 4-7, including assistance in obtaining evidence in their possession necessary for the proceedings.51

2.       States Parties shall co-operate with each other to the fullest extent possible under relevant law, treaties, agreements and arrangements of the requested State Party with respect to criminal investigations or proceedings in relation to the offences for which a legal entity may be held liable in accordance with Article 10 of this Convention in the requesting State Party.52

3.       Each State Party may give consideration to establishing mechanisms to share with other States Parties information or evidence needed to establish criminal, civil or administrative liability pursuant to Article 10.53

4.       States Parties shall carry out their obligations under Paragraph 1 in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.

[Article 18 – Exclusion of the political exception clause]54

Article 18bis – Discrimination clause55

1.       Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in Articles 4-7 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.56

2.       Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to torture.57

3.       Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to the death penalty or, where the law of the requested State does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested State is under the obligation to extradite if the requesting State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.58 59

Article 19 – Spontaneous information60

1.       Without prejudice to their own investigations or proceedings, the competent authorities of a Party may, without prior request, forward to the competent authorities of another Party information obtained within the framework of their own investigations, when they consider that the disclosure of such information might assist the receiving Party in initiating or carrying out investigations or proceedings, or might lead to a request by that Party under the Convention or its Protocols.

2.       The providing Party may, pursuant to its national law, impose conditions on the use of such information by the receiving Party.

3.       The receiving Party shall be bound by those conditions.

4.       However, any Contracting State may, at any time, by means of a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to be bound by the conditions imposed by the providing Party under paragraph 2 above, unless it receives prior notice of the nature of the information to be provided and agrees to its transmission.

[Article 20 … deleted ]61

[Article 21 … deleted ]62

Article 22 – Signature and entry into force

1.        This Convention shall be open for signature by the member States of the Council of Europe and by non-member States which have participated in its elaboration.

2.        This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

3.        This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five63 States, including at least three member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2.

4.        In respect of any signatory State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2.

Article 23 – Accession to the Convention

1.        After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting with and obtaining the unanimous consent of the Contracting States to the Convention, may invite any State which is not a member of the Council and which has not participated in its elaboration to accede to this Convention. The decision shall be taken by the majority provided for in Article 20 (d) of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers.

2.        In respect of any State acceding to the Convention under paragraph 1 above, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 24 – Territorial application

1.        Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.

2.        Any State may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General of the Council of Europe.

3.        Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General of the Council of Europe.

Article 25 – Effects of the Convention64

1.        The present Convention supplements applicable multilateral or bilateral treaties or arrangements as between the States Parties, including the provisions of:

–       the European Convention on Extradition, opened for signature in Paris on 13 December 1957 (ETS No. 24)

–       the European Convention on Mutual Assistance in Criminal Matters, opened for signature in Strasbourg on 20 April 1959 (ETS No. 30);

–       the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, opened for signature in Strasbourg on 17 March 1978 (ETS No. 99).65

2.        If two or more States Parties have already concluded an agreement or treaty on the matters dealt with in this Convention or have otherwise established their relations on such matters, or should they in future do so, they shall also be entitled to apply that agreement or treaty or to regulate those relations accordingly. However, where States Parties establish their relations in respect of the matters dealt with in the present convention other than as regulated therein, they shall do so in a manner that is not inconsistent with the Convention’s objectives and principles.

3.        Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities of a State Party and individuals under international law, including international humanitarian law.66

[Article 26 – … deleted]67

[Article 27 – …deleted]68

Article 28 – Amendments of the Convention

1.        Amendments to this Convention may be proposed by any State Party, and shall be communicated by the Secretary General of the Council of Europe to the member States of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention, as well as to any State which has acceded to, or has been invited to accede to, this Convention in accordance with the provisions of Article 23.

2.        Any amendment proposed by a State Party shall be communicated to the [follow-up mechanism],69 which shall submit to the Committee of Ministers its opinion on that proposed amendment.

3.        The Committee of Ministers shall consider the proposed amendment and the opinion submitted by the [follow-up mechanism]70 and, following consultation with the non-member States Parties to this Convention, may adopt the amendment.

4.        The text of any amendment adopted by the Committee of Ministers in accordance with paragraph 3 of this Article shall be forwarded to the States Parties for acceptance.

5.        Any amendment adopted in accordance with paragraph 3 of this Article shall come into force on the thirtieth day after all States Parties have informed the Secretary General of the Council of Europe of their acceptance thereof.

Article 29 – Revision of the Annex71

1.       In order to update the list of treaties in the Annex, amendments may be proposed by any Contracting State or by the Committee of Ministers. They shall be communicated by the Secretary General of the Council of Europe to the Contracting States.

2.       After having consulted the non-member Contracting States and, if necessary, the CDPC, the Committee of Ministers may adopt a proposed amendment by the majority provided for in Article 20.d of the Statute of the Council of Europe. The amendment shall enter into force following the expiry of a period of one year after the date on which it has been forwarded to the Contracting States. During this period, any Contracting State may notify the Secretary General of the Council of Europe of any objection to the entry into force of the amendment in its respect.

3.       If one-third of the Contracting States notifies the Secretary General of the Council of Europe of an objection to the entry into force of the amendment, the amendment shall not enter into force.

4.       If less than one-third of the Contracting States notifies an objection, the amendment shall enter into force for those Contracting States which have not notified an objection.

5.       Once an amendment has entered into force in accordance with paragraph 2 of this Article and a Contracting State has notified an objection to it, this amendment shall come into force in respect of the Contracting State concerned on the first day of the month following the date on which it has notified the Secretary General of the Council of Europe of its acceptance.

Article 30 – Settlement of disputes

1.        The … (…) shall be kept informed regarding the interpretation and application of this Convention.

2.        In case of a dispute between States Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the … (…), to an arbitral tribunal whose decisions shall be binding upon the States Parties, or to the International Court of Justice, as agreed upon by the States Parties concerned.

Article 31 – Follow-up72

1.       The Conference of States Parties against Terrorism (hereinafter referred to as the “COSTER”) established pursuant to the Protocol of Amendment to the European Convention on the Suppression of Terrorism (ETS No. 190) is responsible for following the application of the Convention. The COSTER:

a.       shall be kept informed regarding the application of the Convention;

b       shall make proposals with a view to facilitating or improving the effective use and operation of this Convention including the identification of any problems therein, in close contact with the European Committee for Crime Problems (the CDPC);

c.       shall make recommendations to the Committee of Ministers concerning the proposals for amendments to the Convention, and shall give its opinion on any proposals for amendments to the Convention submitted by a Contracting State in accordance with Article 28; at the latest three73 years after the present Convention enters into force, the COSTER shall, in co-operation with the States Parties, conduct a review of all of the Convention’s provisions and, if necessary, recommend any appropriate amendments.

d.       shall, at the request of a Contracting State, express an opinion on any question concerning the application of the Convention;

e.       shall assure the exchange of information on significant legal and policy developments pertaining to the fight against terrorism;

f.       shall examine, at the request of the Committee of Ministers, measures adopted within the Council of Europe in the field of the fight against terrorism and, where appropriate, elaborate of proposals for additional measures necessary to improve international co-operation in the area of the fight against terrorism and, where co-operation in criminal matters is concerned, in consultation with the CDPC;

g.       shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of the execution of the Convention;

h.       shall make recommendations to the Committee of Ministers concerning non-member States of the Council of Europe to be invited to accede to the Convention in accordance with Article 23;

i.       shall keep the CDPC periodically informed about its work;

j.       shall submit every year to the Committee of Ministers of the Council of Europe a report on the follow-up given to this Article in the application of the Convention.

2.       The COSTER shall be assisted by the Secretariat of the Council of Europe in carrying out its functions pursuant to this Article.

3.       Pending the entry into force of the Protocol of Amendment to the European Convention on the Suppression of Terrorism (ETS No. 190), the Committee of Experts on Terrorism (the CODEXTER) is responsible for following the application of the Convention and, in particular, for the fulfilment of the obligations mentioned above.

Article 32 – Denunciation74

1.       Any State Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

2.       Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General of the Council of Europe.

Article 33 – Notification

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the non-member States which have participated in the elaboration of this Convention as well as any State which has acceded to, or has been invited to accede to, this Convention of:

a.       any signature;

b.       the deposit of any instrument of ratification, acceptance, approval or accession;

c.       any date of entry into force of this Convention in accordance with Articles .. and ..;

d.       any declaration made under Article .. or reservation made in accordance with Article …;

e.       any other act, notification or communication relating to this Convention.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at …, this … day of … 2005, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention, and to any State invited to accede to it.

Annex75

1. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;

2. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, concluded at Montreal on 23 September 1971;

3. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, adopted at New York on 14 December 1973;

4. International Convention Against the Taking of Hostages, adopted at New York on 17 December 1979;

5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980;

6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, done at Montreal on 24 February 1988;

7. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, done at Rome on 10 March 1988;

8. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988;

9. International Convention for the Suppression of Terrorist Bombings, adopted at New York on 15 December 1997;

10. International Convention for the Suppression of the Financing of Terrorism, adopted at New York on 9 December 1999.76

1 At this point and for the time being, the Bureau has decided to retain the title of the Convention as it stands. The CODEXTER will be asked to come back on this point at a later stage.

2 The CODEXTER considered the possible inclusion of an additional preambular paragraph as follows :

This paragraph was based on the Additional protocol to the Cybercrime convention with the addition of the reference to the freedom of association. The CODEXTER agreed to return to this issue on second reading.

3 The CODEXTER considered a proposal to include the “terrorist motive” in Articles 4-6 as follows:

The CODEXTER will revert to this issue on second reading.

4 At this point and for the time being, the Bureau decided to retain the titles of the Articles for information purposes. The CODEXTER will be asked to take a final decision on this point at a later stage.

5 The Explanatory Memorandum (EM): the term “principal offences” is taken to exclude the ancillary or accessory offences in the Conventions listed in the Annex, and that it would include accomplice and exclude attempt and threat. The CODEXTER will revert to this issue on second reading and consider whether an additional paragraph is needed in this Article.

6 EM: a similar provision is to be found in the International Convention for the Suppression of the Financing of Terrorism (Article 2, para. 2). The Treaty Office of the Council of Europe considers that this provision can remain in Article 2, however the final clause regarding notification should take this provision into account when referring to declarations (cf. Article 33).

7 EM: reference to specialised training is made in this paragraph because it covers a wider field than domestic co-operation provided for in paragraph 2.

8 EM: differences between Articles 3 and 9. The former deals with prevention policies while the latter deals with safeguards on criminalization obligations.

9 N.B. register the different places where there are references to human rights.

10 The CODEXTER considered the possibility of adapting the formula in Article 15 of the Cybercrime convention as follows:

11 The exact place of the provision will be decided at a later stage by the CODEXTER. Thus, it could be placed as Article 17bis.

12 Texts proposed by the Bureau of the CODEXTER in the light of the result of discussions at the 6th meeting of the CODEXTER. The CODEXTER will pursue its consideration of this provision on second reading.

13 EM: based on the Additional Protocol to the Cybercrime Convention, Article 3.

14 EM: reference to the problems connected with the dissemination of terrorist propaganda and the relevant case-law of the ECHR and to the fact that that no terrorist act can be justified on any grounds.

15 See note 3.

16 EM: develop this concept, on the basis of Para. 24 of the Explanatory Memorandum of the Additional Protocol to the Cybercrime Convention.

17 The Bureau noted that a proposal was made concerning the possible need for a specific reference to terrorist motives.

18 EM: detailed reference to the criteria outlined by the case-law of the European Court of Human Rights in this respect.

19 Texts proposed by the Bureau of the CODEXTER in the light of the result of discussions at the 6th meeting of the CODEXTER. The CODEXTER will pursue its consideration of this provision on second reading.

20 The CODEXTER agreed that the EM should indicate that for the purposes of paragraph 1, a State Party may choose to interpret the terms “association or group” to mean “proscribed” organisations or groups in accordance with its national law. Moreover, it is recalled that States Parties may wish to make a declaration in this sense.

21 See note 3.

22 EM: develop this concept, on the basis of Paragraph 24 of the Explanatory Memorandum of the Additional Protocol to the Cybercrime Convention.

23 The Bureau noted that a proposal was made concerning the possible need for a specific reference to terrorist motives.

24 Texts proposed by the Bureau of the CODEXTER in the light of the result of discussions at the 6th meeting of the CODEXTER. The CODEXTER will pursue its consideration of this provision on second reading.

25 See note 3.

26 EM: develop this concept, on the basis of Para. 24 of the Explanatory Memorandum of the Additional Protocol to the Cybercrime Convention. Moreover, recall the EM to the Cybercrime convention regarding the use of the term “sans droit” which is similar to “unlawful”.

27 The CODEXTER considered the possible inclusion of the following provision:

The CODEXTER had a preliminary consideration of this provision and decided to return to it at a later stage on the basis of a revised draft restricting the scope of these provisions to certain categories of persons, namely public officials.

28 Texts proposed by the Bureau of the CODEXTER in the light of the result of discussions at the 6th meeting of the CODEXTER. The CODEXTER will pursue its consideration of this provision on second reading.

29 The CODEXTER agreed to the inclusion of this provision, notwithstanding the need for further reflection on its effects. An alternative formulation for the beginning of the Article was proposed as follows: “Without prejudice to the obligation to establish the offences listed in Articles 4-7, Articles 15 and 16 shall not apply where any of such offences” instead of the terms “This Convention shall not apply where any of the offences established in accordance with Articles 4-7”.

30 EM: based on Article 3 of the International Convention for the Suppression of Financing of terrorism and Article 3 of the International Convention for the Suppression of Terrorist Bombing.

31 EM: this provision does not affect the obligation to establish the offence in pursuance of Articles 4-7 of the Convention; that it does not exclude or limit the possibility for States’ Parties to incriminate the acts provided for in the Convention even when the conditions of this Article are met, i.e.: when only “national” elements are present. This provision has the effect of excluding the application of the provisions on extradition or mutual assistance. This provision is closely connected with the provision on jurisdiction, Article 14.

The nature of some of the offences provided for in the Convention, for example, those committed through Internet, needs to be reflected upon.

32 EM: based on Article 7 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.

33 The CODEXTER considered the following proposal :

Some delegations supported its inclusion while others had reservations. Some delegations suggested referring to existing international instruments. The CODEXTER agreed to return to it on second reading in the light of developments in other committees, including the work of the PC-RM concerning the elaboration of a convention on money laundering and financing of terrorism which includes a provision on confiscation (cf. Article 3).

34 The CODEXTER consider a proposal to adapt the formula in this provision following that in Article 15 of the Cybercrime convention as follows:

35 A number of delegations proposed the deletion of the whole paragraph. Others advocated its being maintained.

Further more, a number of delegations proposed the deletion of the terms “subject to the principle of proportionality” and “with respect to the legitimate aims pursued and to their necessity in a democratic society”. Other delegations supported maintaining these terms. The CODEXTER will return to this issue on second reading.

36 EM: the term “entity” was preferred to that of “persons” as it was considered to have a wider scope.

37 EM: the term “act” has been used instead of the term “offences” in the light of paragraph 2 which refers to various types of liability, including not only criminal but also civil and administrative liability.

38 EM: these Articles are based on similar provisions in international treaties, including the UN Convention against Corruption (opened for signature in Merida, 9-11 December 2003) Article 26, the UN Convention against Transnational Organized Crime (opened for signature in Palermo, 12 December 2000), Article 10; and the International Convention for the Suppression of the Financing of Terrorism (opened for signature on December 10, 1999 in New York), Article 5. An identical formula to the one in Article 5 of the International Convention for the Suppression of the Financing of Terrorism was included in Article 9 of the “Working document submitted by India on the draft comprehensive convention on international terrorism” (See: Measures to eliminate international terrorism. Report of the Working Group. 19 October 2000. Doc. A/C.6/55/L.2, Annex 2).

39 The CODEXTER considered the following proposal:

In addition, the Chair of the CODEXTER proposed the inclusion of the following preambular paragraph:

The CODEXTER could not agree to the inclusion of the above-mentioned provisions on first reading. Therefore, it decided to revert to them on second reading in the light of the opinion of the Parliamentary Assembly.

40 The CODEXTER considered the following proposal based on Article 7 of the Draft international comprehensive convention on terrorism being discussed in the UN:

A delegation proposed the inclusion of the terms “planned, facilitated or” before the term “committed. An observer suggested using the terms “acts of terrorism” instead of or in addition to the terms “offence referred to …”.

The CODEXTER could not agree to the inclusion of the above-mentioned provision on first reading. It will revert to its consideration on second reading in the light of the opinion of the Parliamentary Assembly.

41 The representative of the EU (Council Secretariat) informed the Committee that this provision may cover issues within the EC’s competence and in that case require that the European Commission be given a negotiating mandate.

42 EM: based on Article 9, paragraphs 1-4, of the UN Convention on the Suppression of the Financing of Terrorism). A similar provision is to be found in the UN Convention on the Suppression of Terrorist Bombings (Article 7, paragraphs 1-4).

43 EM: equivalent provisions are contained in Article 6 (5) of the UN Convention on Hostages, Article 9 (5) of the UN Convention on the Financing of Terrorism and in Article 7 (5) of the UN Convention on Terrorist Bombings.

44 EM: similar provisions are found in most UN conventions against terrorism as well as in the Cybercrime Convention of the Council of Europe.

45 The CODEXTER considered the following alternative proposal for this sub-paragraph based on the International Convention for the Suppression of the Financing of Terrorism (Article 7, paragraph 4):

Moreover, some delegations wished to have this sub-paragraph as an optional one. The CODEXTER will return to this issue on second reading.

46 EM: an equivalent provision is contained in Article 6 (2) (c) of the UN Convention on Terrorist Bombing and similar wording is contained in Article 5 (1) (b) of the UN Convention on Hostages.

47 EM: based on paragraph 2 of Article 6 of the European Convention on the Suppression of Terrorism.

48 EM: based on an identical provision in the Convention on Cybercrime (Article 22, paragraph 5).

49 EM: based on Article 8 of the UN Convention for the Suppression of Terrorist Bombings.

50 EM: based on Article 9 of the UN Convention for the Suppression of Terrorist Bombings.

51 EM: based on Article 12 (1) of the International Convention for the Suppression of the Financing of Terrorism.

52 EM: based on paragraph 2 of Article 18 of the UN Convention on Trans-national crime.

53 EM: based on paragraph 4 of Article 12 of the International Convention on the Suppression of the Financing of Terrorism.

54 The CODEXTER considered the following proposal for this Article, based on Article 11 of the UN Convention for the Suppression of Terrorist Bombings and Article 12 of the International Convention on the International Convention on the Suppression of the Financing of Terrorism:

The CODEXTER decided to revert to the consideration of this proposal on second reading.

55 The CODEXTER considers that this provision should be treated together with Article 18 as a package. The CODEXTER will revert to this matter on second reading.

56 EM: based on Article 15 International Convention for the Suppression of the Financing of Terrorism.

57 EM: based on Article 5 of the European Convention for the Suppression of Terrorism, as revised by its Amending Protocol.

58 The CODEXTER will consider the possibility to delete the reference to “life imprisonment without the possibility of parole” as ground for refusal.

59 EM: based on Article 5 of the European Convention for the Suppression of Terrorism, as revised by its Amending Protocol.

60 EM: based on Article 11 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 8.XI.2001).

61 The CODEXTER considered the possibility of including a provision on confidentiality and limitation on use based on Article 28 of the CoE Convention on Cybercrime. The CODEXTER decided not to retain this provision. Moreover, the CODEXTER agreed to consider the implications of the draft convention on international co-operation on second reading.

62 The CODEXTER considered the possibility of including a provision on points of contact based on Article 35 of the CoE Convention on cybercrime. The CODEXTER decided not to retain this provision.

63 The CODEXTER will discuss on second reading the exact number of Parties for entry into force.

64 The CODEXTER will consider on second reading the possible inclusion of a specific provision dealing with the relations between this Convention and Community and EU rules in particular. In drafting this provision, the CODEXTER will bear in mind the discussions under way in other relevant committees, in particular the PC-RM.

65 The CODEXTER considered the possibility of including a reference to the European Convention on the Suppression of Terrorism and its Amending Protocol. The CODEXTER decided to revert to this issue on second reading.

66 The CODEXTER considered a proposal to add the terms “in particular” before the terms “international humanitarian law”. It will revert to this issue on second reading.

67 The CODEXTER considered the following proposal:

The CODEXTER agreed to revert to this proposal and its exact place in the text of the draft Convention on second reading.

Furthermore, the CODEXTER decided to consider on second reading the possibility of including a provision along the lines of Article 19, paragraph 2 of the International Convention on the Suppression of Terrorist Bombings as follows:

68 The CODEXTER decided to delete the “Federal Clause” provision based on the Cybercrime Convention.

69 See Article 31.

70 Idem.

71 EM: based on a similar provision in the Amending Protocol to the European Convention on the Suppression of Terrorism. The CODEXTER will consider on second reading the possibility of including in the first paragraph the terms “These proposals for amendment shall only concern treaties concluded within the United Nations Organisation dealing specifically with international terrorism and having entered into force” which are included in the relevant provision of the above-mentioned Protocol, and whether or not an alternative formulation based on Article 23 of the International Convention for the Suppression of the Financing of Terrorism could be used.

72 EM: based on the Amending Protocol to the European Convention on the Suppression of Terrorism. The CODEXTER will consider the implications concerning the different number of Parties to the above-mentioned Protocol and to the Draft Convention on second reading.

73 The CODEXTER will revert to this matter, i.e.: the exact number of years, on second reading.

74 The CODEXTER considered a proposal in the sense that requests for extradition and mutual legal assistance that a State Party has received before the denunciation should be considered in conformity with the provisions of this Convention. The CODEXTER will revert to this proposal on second reading. (cf. Article 43 (3) of the CoE Convention on Money Laundering).

75 EM: same list of treaties in Article 1, paragraph 1 of the European Convention on the Suppression of Terrorism as revised by its Amending Protocol (ETS 190).

76 The CODEXTER will reconsider the possible exclusion of this Convention from the Annexe on second reading.