The member States of the Council of Europe and the other Signatories hereto,

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

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

Wishing to take effective measures to prevent terrorism and to counter, in particular, public provocation to commit terrorist offences and recruitment and training for terrorism;

Aware of the grave concern caused by the increase in terrorist offences and the growing terrorist threat;

Aware of the precarious situation faced by those who suffer from terrorism, and in this connection reaffirming their profound solidarity with the victims of terrorism and their families;

Recognising that terrorist offences and the offences set forth in this Convention, by whoever perpetrated, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and recalling the obligation of all Parties to prevent such offences and, if not prevented, to prosecute and ensure that they are punishable by penalties which take into account their grave nature;

Recalling the need to strengthen the fight against terrorism and reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law;

Recognising that this Convention is not intended to affect established principles relating to freedom of expression and freedom of association;

Recalling that acts of terrorism have the purpose by their nature or context to seriously intimidate a population or unduly compel a government or an international organisation to perform or abstain from performing any act or seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation;

Have agreed as follows:

Article 1 – Terminology

1 For the purposes of this Convention, "terrorist offence" means any of the offences within the scope of and as defined in one of the treaties listed in the Appendix.

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

Article 2 – Purpose

The purpose of the present Convention is to enhance the efforts of Parties in preventing terrorism and its negative effects on the full enjoyment of human rights, in particular the right to life, 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 agreements between the Parties.

Article 3 – National prevention policies

1 Each Party shall take appropriate measures, particularly in the field of training of law enforcement authorities and other bodies, and in the fields of education, culture, information, media and public awareness raising, with a view to preventing terrorist offences and their negative effects while respecting human rights obligations as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.

2 Each Party shall take such measures as may be necessary to improve and develop the co-operation among national authorities with a view to preventing terrorist offences and their negative 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 Party shall promote tolerance by encouraging inter-religious and cross-cultural dialogue involving, where appropriate, non-governmental organisations and other elements of civil society with a view to preventing tensions that might contribute to the commission of terrorist offences.

4 Each Party shall endeavour to promote public awareness regarding the existence, causes and gravity of and the threat posed by terrorist offences and the offences set forth in this Convention and consider encouraging the public to provide factual, specific help to its competent authorities that may contribute to preventing terrorist offences and offences set forth in this Convention.

Article 4 – International co-operation on prevention

Parties shall, as appropriate and with due regard to their capabilities, assist and support each other with a view to enhancing their capacity to prevent the commission of terrorist offences, including through exchange of information and best practices, as well as through training and other joint efforts of a preventive character.

Article 5 – Public provocation to commit a terrorist offence

1 For the purposes of this Convention, "public provocation to commit a terrorist offence" means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.

2 Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.

Article 6 – Recruitment for terrorism

1 For the purposes of this Convention, "recruitment for terrorism" means to solicit another person to commit or participate in the commission of a terrorist offence, or to join an association or group, for the purpose of contributing to the commission of one or more terrorist offences by the association or the group.

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

Article 7 – Training for terrorism

1 For the purposes of this Convention, "training for terrorism" means to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose.

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

Article 8 – Irrelevance of the commission of a terrorist offence

For an act to constitute an offence as set forth in Articles 5 to 7 of this Convention, it shall not be necessary that a terrorist offence be actually committed.

Article 9 – Ancillary offences

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

a Participating as an accomplice in an offence as set forth in Articles 5 to 7 of this Convention;

b Organising or directing others to commit an offence as set forth in Articles 5 to 7 of this Convention;

c Contributing to the commission of one or more offences as set forth in Articles 5 to 7 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

i be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in Articles 5 to 7 of this Convention; or

ii be made in the knowledge of the intention of the group to commit an offence as set forth in Articles 5 to 7 of this Convention.

2 Each Party shall also adopt such measures as may be necessary to establish as a criminal offence under, and in accordance with, its domestic law the attempt to commit an offence as set forth in Articles 6 and 7 of this Convention.

Article 10 – Liability of legal entities

1 Each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention.

2 Subject to the legal principles of the 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.

Article 11 – Sanctions and measures

1 Each Party shall adopt such measures as may be necessary to make the offences set forth in Articles 5 to 7 and 9 of this Convention punishable by effective, proportionate and dissuasive penalties.

2 Previous final convictions pronounced in foreign States for offences set forth 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.

3 Each Party shall ensure that legal entities held liable in accordance with Article 10 are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

Article 12 – Conditions and safeguards

1 Each Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention are carried out while respecting human rights obligations, in particular the right to freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.

2 The establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 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, and should exclude any form of arbitrariness or discriminatory or racist treatment.

Article 13 – Protection, compensation and support for victims of terrorism

Each Party shall adopt such measures as may be necessary to protect and support the victims of terrorism that has 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 terrorism and their close family members.

Article 14 Jurisdiction

1 Each 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 Party;

b when the offence is committed on board a ship flying the flag of that Party, or on board an aircraft registered under the laws of that Party;

c when the offence is committed by a national of that Party.

2 Each Party may also establish its jurisdiction over the offences set forth in this Convention:

a when the offence was directed towards or resulted in the carrying out of an offence referred to in Article 1 of this Convention, in the territory of or against a national of that Party;

b when the offence was directed towards or resulted in the carrying out of an offence referred to in Article 1 of this Convention, against a State or government facility of that Party abroad, including diplomatic or consular premises of that Party;

c when the offence was directed towards or resulted in an offence referred to in Article 1 of this Convention, committed in an attempt to compel that Party to do or abstain from doing any act;

d when the offence is committed by a stateless person who has his or her habitual residence in the territory of that Party;

e when the offence is committed on board an aircraft which is operated by the Government of that Party.

3 Each Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in this Convention in the case where the alleged offender is present in its territory and it does not extradite him or her to a Party whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested Party.

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

5 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 prosecution.

Article 15 – Duty to investigate

1 Upon receiving information that a person who has committed or who is alleged to have committed an offence set forth in this Convention may be present in its territory, the 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 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 in respect of 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 Party 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 shall be without prejudice to the right of any Party having a claim of jurisdiction in accordance with Article 14, paragraphs 1.c and 2.d to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

Article 16 – Non application of the Convention

This Convention shall not apply where any of the offences established in accordance with Articles 5 to 7 and 9 is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State, and no other State has a basis under Article 14, paragraph 1 or 2 of this Convention, to exercise jurisdiction, it being understood that the provisions of Articles 17 and 20 to 22 of this Convention shall, as appropriate, apply in those cases.

Article 17 – International co-operation in criminal matters

1 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 5 to 7 and 9 of this Convention, including assistance in obtaining evidence in their possession necessary for the proceedings.

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

3 Parties shall co-operate with each other to the fullest extent possible under relevant law, treaties, agreements and arrangements of the requested 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 Party.

4 Each Party may give consideration to establishing additional mechanisms to share with other Parties information or evidence needed to establish criminal, civil or administrative liability pursuant to Article 10.

Article 18 – Extradite or prosecute

1 The 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 Party. 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 Party.

2 Whenever a 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 Party 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 Party and the Party 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 19 – Extradition

1 The offences set forth in Articles 5 to 7 and 9 of this Convention shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the Parties before the entry into force of this Convention. Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2 When a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, the requested Party may, if it so decides, consider this Convention as a legal basis for extradition in respect of the offences set forth in Articles 5 to 7 and 9 of this Convention. Extradition shall be subject to the other conditions provided by the law of the requested Party.

3 Parties which do not make extradition conditional on the existence of a treaty shall recognise the offences set forth in Articles 5 to 7 and 9 of this Convention as extraditable offences between themselves, subject to the conditions provided by the law of the requested Party.

4 Where necessary, the offences set forth in Articles 5 to 7 and 9 of this Convention shall be treated, for the purposes of extradition between Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the Parties that have established jurisdiction in accordance with Article 14.

5 The provisions of all extradition treaties and agreements concluded between Parties in respect of offences set forth in Articles 5 to 7 and 9 of this Convention shall be deemed to be modified as between Parties to the extent that they are incompatible with this Convention.

Article 20 – Exclusion of the political exception clause

1 None of the offences referred to in Articles 5 to 7 and 9 of this Convention, shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence, an offence connected with a political offence, or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

2 Without prejudice to the application of Articles 19 to 23 of the Vienna Convention on the Law of Treaties of 23 May 1969 to the other Articles of this Convention, any State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession of the Convention, declare that it reserves the right to not apply paragraph 1 of this Article as far as extradition in respect of an offence set forth in this Convention is concerned. The Party undertakes to apply this reservation on a case-by-case basis, through a duly reasoned decision.

3 Any Party may wholly or partly withdraw a reservation it has made in accordance with paragraph 2 by means of a declaration addressed to the Secretary General of the Council of Europe which shall become effective as from the date of its receipt.

4 A Party which has made a reservation in accordance with paragraph 2 of this Article may not claim the application of paragraph 1 of this Article by any other Party; it may, however, if its reservation is partial or conditional, claim the application of this article in so far as it has itself accepted it.

5 The reservation shall be valid for a period of three years from the day of the entry into force of this Convention in respect of the Party concerned. However, such reservation may be renewed for periods of the same duration.

6 Twelve months before the date of expiry of the reservation, the Secretary General of the Council of Europe shall give notice of that expiry to the Party concerned. No later than three months before expiry, the Party shall notify the Secretary General of the Council of Europe that it is upholding, amending or withdrawing its reservation. Where a Party notifies the Secretary General of the Council of Europe that it is upholding its reservation, it shall provide an explanation of the grounds justifying its continuance. In the absence of notification by the Party concerned, the Secretary General of the Council of Europe shall inform that Party that its reservation is considered to have been extended automatically for a period of six months. Failure by the Party concerned to notify its intention to uphold or modify its reservation before the expiry of that period shall cause the reservation to lapse.

7 Where a Party does not extradite a person in application of this reservation, after receiving an extradition request from another Party, it shall submit the case, without exception whatsoever and without undue delay, to its competent authorities for the purpose of prosecution, unless the requesting Party and the requested Party agree otherwise. The competent authorities, for the purpose of prosecution in the requested Party, shall take their decision in the same manner as in the case of any offence of a grave nature under the law of that Party. The requested Party shall communicate, without undue delay, the final outcome of the proceedings to the requesting Party and to the Secretary General of the Council of Europe, who shall forward it to the Consultation of the Parties provided for in Article 30.

8 The decision to refuse the extradition request on the basis of this reservation shall be forwarded promptly to the requesting Party. If within a reasonable time no judicial decision on the merits has been taken in the requested Party according to paragraph 7, the requesting Party may communicate this fact to the Secretary General of the Council of Europe, who shall submit the matter to the Consultation of the Parties provided for in Article 30. This Consultation shall consider the matter and issue an opinion on the conformity of the refusal with the Convention and shall submit it to the Committee of Ministers for the purpose of issuing a declaration thereon. When performing its functions under this paragraph, the Committee of Ministers shall meet in its composition restricted to the States Parties.

Article 21 – Discrimination clause

1 Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested Party has substantial grounds for believing that the request for extradition for offences set forth in Articles 5 to 7 and 9 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.

2 Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to torture or to inhuman or degrading treatment or punishment.

3 Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to the death penalty or, where the law of the requested Party does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested Party is under the obligation to extradite if the requesting Party gives such assurance as the requested Party 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.

Article 22 – Spontaneous information

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 Party receiving the information in initiating or carrying out investigations or proceedings, or might lead to a request by that Party under this Convention.

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

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

4 However, any Party 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 Party providing the information under paragraph 2 above, unless it receives prior notice of the nature of the information to be provided and agrees to its transmission.

Article 23 – Signature and entry into force

1 This Convention shall be open for signature by the member States of the Council of Europe, the European Community 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 six Signatories, including at least four member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraph 2.

4 In respect of any Signatory 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 paragraph 2.

Article 24 – 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 Parties to the Convention, may invite any State which is not a member of the Council of Europe 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 Parties 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 25 – Territorial application

1 Any State or the European Community 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 Party 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.

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.

Article 26 – Effects of the Convention

1 The present Convention supplements applicable multilateral or bilateral treaties or agreements between the Parties, including the provisions of the following Council of Europe treaties:

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

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

– European Convention on the Suppression of Terrorism, opened for signature, in Strasbourg, on 27 January 1977 (ETS No. 90);

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

– Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, opened for signature in Strasbourg on 8 November 2001 (ETS No. 182);

– Protocol amending the European Convention on the Suppression of Terrorism, opened for signature in Strasbourg on 15 May 2003 (ETS No. 190).

2 If two or more 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 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 Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties. (1)

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

5 The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a Party in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

Article 27 – Amendments to the Convention

1 Amendments to this Convention may be proposed by any Party, the Committee of Ministers of the Council of Europe or the Consultation of the Parties.

2 Any proposal for amendment shall be communicated by the Secretary General of the Council of Europe to the Parties.

3 Moreover, any amendment proposed by a Party or the Committee of Ministers shall be communicated to the Consultation of the Parties, which shall submit to the Committee of Ministers its opinion on the proposed amendment.

4 The Committee of Ministers shall consider the proposed amendment and any opinion submitted by the Consultation of the Parties and may approve the amendment.

5 The text of any amendment approved by the Committee of Ministers in accordance with paragraph 4 shall be forwarded to the Parties for acceptance.

6 Any amendment approved in accordance with paragraph 4 shall come into force on the thirtieth day after all Parties have informed the Secretary General of their acceptance thereof.

Article 28 – Revision of the Appendix

1 In order to update the list of treaties in the Appendix, amendments may be proposed by any Party or by the Committee of Ministers. These proposals for amendment shall only concern universal treaties concluded within the United Nations system dealing specifically with international terrorism and having entered into force. They shall be communicated by the Secretary General of the Council of Europe to the Parties.

2 After having consulted the non-member Parties, 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 Parties. During this period, any Party may notify the Secretary General of the Council of Europe of any objection to the entry into force of the amendment in respect of that Party.

3 If one third of the Parties 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 Parties notifies an objection, the amendment shall enter into force for those Parties which have not notified an objection.

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

Article 29 – Settlement of disputes

In the event of a dispute between 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 an arbitral tribunal whose decisions shall be binding upon the Parties to the dispute, or to the International Court of Justice, as agreed upon by the Parties concerned.

Article 30 – Consultation of the Parties

1 The Parties shall consult periodically with a view to:

a making proposals to facilitate or improve the effective use and implementation of this Convention, including the identification of any problems and the effects of any declaration made under this Convention;

b formulating its opinion on the conformity of a refusal to extradite which is referred to them in accordance with Article 20, paragraph 8;

c making proposals for the amendment of this Convention in accordance with Article 27;

d formulating their opinion on any proposal for the amendment of this Convention which is referred to them in accordance with Article 27, paragraph 3;

e expressing an opinion on any question concerning the application of this Convention and facilitating the exchange of information on significant legal, policy or technological developments.

2 The Consultation of the Parties shall be convened by the Secretary General of the Council of Europe whenever he finds it necessary and in any case when a majority of the Parties or the Committee of Ministers request its convocation.

3 The Parties shall be assisted by the Secretariat of the Council of Europe in carrying out their functions pursuant to this article.

Article 31 – Denunciation

1 Any 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.

Article 32 – Notification

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the European Community, 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 Article 23;
d any declaration made under Article 1, paragraph 2, 22, paragraph 4, and 25 ;
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 Warsaw, this 16th day of May 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 European Community, to the non-member States which have participated in the elaboration of this Convention, and to any State invited to accede to it.

Note by the Secretariat:

See the Declaration formulated by the European Community and the Member States of the European Union upon the adoption of the Convention by the Committee of Ministers of the Council of Europe, on 3 May 2005:

“The European Community/European Union and its Member States reaffirm that their objective in requesting the inclusion of a “disconnection clause” is to take account of the institutional structure of the Union when acceding to international conventions, in particular in case of transfer of sovereign powers from the Member States to the Community.

This clause is not aimed at reducing the rights or increasing the obligations of a non-European Union Party vis-à-vis the European Community/European Union and its Member States, inasmuch as the latter are also parties to this Convention.

The disconnection clause is necessary for those parts of the Convention which fall within the competence of the Community/Union, in order to indicate that European Union Member States cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union). This does not detract from the fact that the Convention applies fully between the European Community/European Union and its Member States on the one hand, and the other Parties to the Convention, on the other; the Community and the European Union Members States will be bound by the Convention and will apply it like any Party to the Convention, if necessary, through Community/Union legislation. They will thus guarantee the full respect of the Convention’s provisions vis-à-vis non-European Union Parties.”

Appendix

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 in New York on 14 December 1973;

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

5 Convention on the Physical Protection of Nuclear Material, adopted in 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 in New York on 15 December 1997;

10 International Convention for the Suppression of the Financing of Terrorism, adopted in New York on 9 December 1999.

I. The Council of Europe Convention on the Prevention of Terrorism (hereafter referred to as "the Convention") and its Explanatory Report were adopted by the Committee of Ministers of the Council of Europe at its 925th meeting. The Convention was then opened for signature by the member States of the Council of Europe, the European Community and non-member States which participated in its elaboration on 16 May 2005 on the occasion of the Third Summit of Heads of State and Government of the Council of Europe.

II. The text of this Explanatory Report does not constitute an instrument providing an authoritative interpretation of the Convention, although it may serve to facilitate the application of the provisions contained therein.

Introduction
1 The Council of Europe’s response to the terrorist attacks of unprecedented violence committed in the United States of America on 11 September 2001 was both firm and immediate.

2 At its 109th Session on 8 November 2001, the Committee of Ministers "agreed to take steps rapidly to increase the effectiveness of the existing international instruments within the Council of Europe on the fight against terrorism by, inter alia, setting up a Multidisciplinary Group on International Action against Terrorism (GMT)".

3 Among the tasks given to the GMT was reviewing the implementation of and examining the possibility of updating existing Council of Europe international instruments relating to the fight against terrorism, in particular the European Convention on the Suppression of Terrorism, in view also of a possible opening of that Convention to non-member States, and the other relevant instruments.

4 As a result of this work, on 13 February 2003, the Committee of Ministers approved a Protocol amending the European Convention on the Suppression of Terrorism (ETS No. 190) which was opened for signature on 15 May 2003.

5 In the course of the discussions of the GMT concerning the preparation of the Protocol, the question of the drafting of a comprehensive convention on terrorism in the Council of Europe was raised several times. However, the GMT did not formally take a stand on this question because it considered this issue to be beyond its remit.

6 The issue was re-launched by the Parliamentary Assembly in its Recommendation 1550 (2002) on combating terrorism and respect for human rights and, later on, in its Opinion No. 242 (2003) concerning the above-mentioned protocol, where the Assembly expressed its belief "that it would be appropriate, in due course, to consider the possibility of drawing up a comprehensive Council of Europe convention on terrorism, taking into account the work carried out by the United Nations". Furthermore, in January 2004, the Parliamentary Assembly adopted Recommendation 1644 (2004) on terrorism: a threat to democracies, where it invited the Committee of Ministers to begin work without delay on the elaboration of a comprehensive Council of Europe convention on terrorism, based on the normative acquis of the legal instruments and other texts of the United Nations, the Council of Europe and the European Union.

7 In May 2003, the Committee of Ministers stressed the necessity of reinforcing international co-operation in the fight against terrorism and supporting the efforts of the United Nations in this field. In this context, the Ministers noted with interest the proposal of the Parliamentary Assembly to draft a comprehensive convention on terrorism under the aegis of the Council of Europe.

8 In June 2003, the Committee of Ministers agreed to return to the discussion of the initial proposal to prepare a comprehensive convention on terrorism under the auspices of the Council of Europe on the basis of the conclusions of the 25th Conference of European Ministers of Justice (Sofia, 9 and 10 October 2003) on the theme of the fight against terrorism and of the proposals of the Committee of Experts on Terrorism (CODEXTER), a new governmental committee of experts set up following the expiry of the terms of reference of the GMT.

9 At the 25th Conference of the European Ministers of Justice, the Ministers invited the CODEXTER to provide the Committee of Ministers with an opinion on the added value of a possible comprehensive Council of Europe convention on terrorism, or of some elements of such a convention, which would contribute significantly to the United Nations’ efforts in this field.

10 In pursuance of this request, at its first meeting (Strasbourg, 27-30 October 2003), the CODEXTER commissioned the preparation of an independent expert report on possible gaps in international instruments against terrorism and on the "possible added value" of a comprehensive Council of Europe convention in relation to existing universal and European instruments of relevance to the fight against terrorism. The general conclusion of the report was that a comprehensive Council of Europe convention on terrorism would provide considerable added value with respect to existing European and universal counter-terrorism instruments.

11 The CODEXTER considered this report at its second meeting (Strasbourg, 29 March-1 April 2004), but could not reach a consensus on the question of whether or not the Council of Europe should elaborate a comprehensive convention on terrorism. However, it agreed that an instrument, or instruments, with limited scope, dealing with the prevention of terrorism and covering existing lacunae in international law or action, would bring added value, and agreed to propose to the Committee of Ministers to instruct the CODEXTER to undertake work in this direction.

12 At its 114th Session (12 and 13 May 2004), the Committee of Ministers took note of the CODEXTER’s work and agreed to give instructions for the elaboration of one or more instruments (which could be legally binding or not) with specific scope dealing with lacunae in existing international law or action on the fight against terrorism, such as those identified by the CODEXTER in its report. On this basis, in May 2004, the Committee of Ministers instructed the Secretariat to prepare proposals for follow-up to the 114th Session concerning the Council of Europe’s contribution to international action against terrorism.

13 On 11 June 2004, the Committee of Ministers adopted revised specific terms of reference for the CODEXTER, pursuant to which the CODEXTER was instructed, inter alia, to "elaborate proposals for one or more instruments (which could be legally binding or not) with specific scope dealing with existing lacunae in international law or action on the fight against terrorism, such as those identified by the CODEXTER in its second meeting report."

14 The CODEXTER held a further six meetings, from July 2004 to February 2005 (its third to eighth meetings), concerning the preparation of a draft Convention on the prevention of terrorism. It was chaired by Ms Gertraude Kabelka (Austria), with Mr Zdzislaw Galicki (Poland) and Mr Martin Sørby (Norway) as vice-chairs.

15 From the outset, the CODEXTER agreed on the need to strengthen legal action against terrorism while ensuring respect for human rights and fundamental values, and on the necessity of including provisions on appropriate safeguards and conditions securing these aims.

16 Two of the Council of Europe texts adopted after the setting up of the GMT were particularly significant for the work of the CODEXTER, namely: the above-mentioned Recommendation 1550 (2002) and the Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers on 11 July 2002.

17 It should be recalled that at its first meeting in October 2003, the CODEXTER had decided to set up the working group CODEXTER-Apologie to analyse the conclusions of an independent expert report on "apologie du terrorisme" and "incitement to terrorism" as criminal offences in the national legislation of member and observer States of the Council of Europe, which was prepared on the basis of relevant legislation and case-law in member and observer States, and the case-law of the European Court of Human Rights. From the survey on the situation in member States it appeared that a majority of them did not have a specific offence regarding "apologie du terrorisme". The working group was instructed to present proposals for follow-up, particularly in the context of the ongoing discussions relating to the preparation of new international instruments on terrorism.

18 The CODEXTER-Apologie, which was chaired by Mr David Touvet (France), reached a series of conclusions which the CODEXTER endorsed at its second meeting in March/April 2004, recognising the existence, at this stage, of lacunae in international law as far as the handling of "apologie du terrorisme" and/or "incitement to terrorism" was concerned. It further agreed to include this issue in the framework of its reflection on the possible elaboration of international instruments.

19 At the third meeting of the CODEXTER, the working group CODEXTER-Apologie produced preliminary draft provisions for a possible instrument on public provocation to commit acts of terrorism. These draft provisions, along with further substantial input from a number of delegations, were subsequently used by the Bureau of the CODEXTER in the elaboration of the draft instrument on the prevention of terrorism presented at the fourth meeting of the CODEXTER.

20 The CODEXTER adopted the draft Convention on first reading at its sixth meeting in December 2004 and then submitted it to the Committee of Ministers which authorised consultation of the Parliamentary Assembly and of the Commissioner for Human Rights of the Council of Europe.

21 At its seventh meeting, early in February 2005, the CODEXTER revised the draft in the light of the above-mentioned opinions and adopted the text on second reading, notwithstanding some issues which required further consideration. At this meeting, the CODEXTER also decided to make the drafts public and to invite interested organisations to submit comments.

22 At its eighth meeting at the end of February 2005, the CODEXTER finalised the draft Convention and approved the present explanatory report. The CODEXTER submitted both texts to the Committee of Ministers, asking it to adopt the Convention and open it for signature, and to authorise the publication of the explanatory report.

23 At the 925th meeting of the Ministers’ Deputies on 3 May 2005, the Committee of Ministers adopted the Convention and decided to open it for signature by the member States of the Council of Europe, the European Community and non-member States that had participated in its elaboration on the occasion of the 3rd Summit of Heads of State and Government of the Council of Europe.

General considerations
24 The purpose of the Convention is to enhance the efforts of Parties in preventing terrorism and its negative effects on the full enjoyment of human rights and in particular the right to life, 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 Parties, as explicitly stated in Article 2.

25 The title of the Convention does not presuppose that the Convention is exhaustive in providing for all the means that may contribute to the prevention of terrorism. Clearly, it only provides some means and concentrates on policy and legal measures. In this respect, the present Convention joins other international standards in the overall objective of preventing and fighting terrorism.

26 The Convention purports to achieve this objective, on the one hand, by establishing as criminal offences certain acts that may lead to the commission of terrorist offences, namely: public provocation, recruitment and training and, on the other hand, by reinforcing co-operation on prevention both internally, in the context of the definition of national prevention policies, and internationally through a number of measures, inter alia, by means of supplementing and, where necessary, modifying existing extradition and mutual assistance arrangements concluded between Parties and providing for additional means, such as spontaneous information, together with obligations relating to law enforcement, such as the duty to investigate, obligations relating to sanctions and measures, the liability of legal entities in addition to that of individuals, and the obligation to prosecute where extradition is refused.

27 It was felt that the climate of mutual confidence among likeminded States, namely the member and observer States of the Council of Europe, based on their democratic nature and their respect for human rights, safeguarded by the institutions set up under the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereafter "ECHR") and other applicable international instruments, justified moving forward with the criminalisation of certain kinds of behaviour which until now had not been dealt with at international level, supplemented by provisions to strengthen international judicial co-operation.

28 The Committee carefully considered the possibility of including an explicit article on declarations and reservations regarding specific provisions in the Convention. Some countries made proposals related to problems where they saw a need for declarations and reservations concerning the application of the International Convention for the Suppression of the Financing of Terrorism to the criminalisation provisions of the Convention; the criminalisation requirements set out in Articles 5 and 9 and problems connected with Article 14, paragraph 1.c. The Committee concluded that it was better to leave those issues to be resolved in accordance with international law, in particular the regime set out in the Vienna Convention on the Law of Treaties.

29 The Convention, starting with the Preamble, contains several provisions concerning the protection of human rights and fundamental freedoms, both in respect of internal and international co-operation on the one hand and as an integral part of the new criminalisation provisions (in the form of conditions and safeguards) on the other hand, not overlooking, in the given context, the situation of victims (see paragraph 31 infra).

30 This is a crucial aspect of the Convention, given that it deals with issues which are on the border between the legitimate exercise of freedoms, such as freedom of expression, association or religion, and criminal behaviour.

31 It also contains a provision regarding the protection and compensation of victims of terrorism and a provision emphasising that the human rights that must be respected are not only the rights of those accused or convicted of terrorist offences, but also the rights of the victims, or potential victims, of those offences (see Article 17 of the ECHR).

32 The Convention does not define new terrorist offences in addition to those included in the existing conventions against terrorism. In this respect, it refers to the treaties listed in the Appendix. However, it creates three new offences which may lead to the terrorist offences as defined in those treaties.

33 These new offences are: public provocation to commit a terrorist offence (Article 5), recruitment for terrorism (Article 6) and training for terrorism (Article 7). They are coupled with a provision on accessory (ancillary) offences (Article 9) providing for the criminalisation of complicity (such as aiding and abetting) in the commission of all of the three aforementioned offences and, in addition, of attempts to commit an offence under Articles 6 and 7 (recruitment and training).

34 One of the characteristics of the new crimes introduced by the Convention is that they do not require that a terrorist offence, within the meaning of Article 1, that is: any of the offences within the scope of and as defined in one of the international treaties against terrorism listed in the Appendix, actually be committed. This is explicitly stated by the Convention in Article 8 based on an equivalent provision in the International Convention for the Suppression of the Financing of Terrorism. Consequently, the place where such an offence would be committed is also irrelevant for the purposes of establishing the commission of any of the offences set forth in Articles 5 to 7 and 9.

35 In addition, these offences must be committed unlawfully and intentionally, as is explicitly stated for each and every one of them.

36 Concerning international co-operation, the Convention builds on the latest trends reflected by treaties such as the Protocol amending the European Convention on the Suppression of Terrorism, the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 182) and the United Nations Convention against Transnational Organized Crime.

37 Where extradition and mutual assistance are concerned, it modifies the agreements concluded between member States of the Council of Europe, including the European Convention on Extradition of 13 December 1957 (ETS No. 24) and its additional protocols of 15 October 1975 and 17 March 1978 (ETS Nos. 86 and 98), the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (ETS No. 30) and its additional protocols of 17 March 1978 and 8 November 2001 (ETS Nos. 99 and 182) and the European Convention on the Suppression of Terrorism (ETS No. 90) and its amending Protocol, in particular by making the offences set forth in the Convention extraditable, and imposing an obligation to provide mutual legal assistance with respect to them.

38 At the same time, in Article 21 safeguards are provided with respect to extradition and mutual legal assistance that make clear that this Convention does not derogate from important traditional grounds for refusal of co-operation under applicable treaties and laws; for example, refusal of extradition where the person will be subjected to torture or to inhuman or degrading treatment or punishment, or to the death penalty, or refusal of either extradition or mutual legal assistance where the person will be prosecuted for political or other impermissible purposes. Where the person is not extradited for these or other reasons, the Party in which he or she is found has the obligation to submit the case for domestic prosecution pursuant to Article 18.

39 The obligations which Parties undertake by adhering to the Convention are closely linked with the special climate of mutual confidence among likeminded States, which is based on their collective recognition of the rule of law and the protection of human rights. For that reason, in spite of the fact that terrorism is a global problem, it was thought necessary to restrict the circle of Parties to the member and observer States of the Council of Europe and to the European Community, although the Committee of Ministers may invite other States to become Parties to the Convention.

40 It goes without saying that the Convention does not affect the other rights, obligations and responsibilities of Parties and individuals in accordance with other international undertakings to which the Parties to the Convention are Parties.

Specific commentaries on the Articles of the Convention
Preamble

41 At the outset, it should be recalled that the preambular paragraphs are not part of the operative provisions of the Convention and therefore by their nature, do not bestow rights or impose obligations on Parties. However, the preambular paragraphs are intended to set a general framework and facilitate the understanding of the operative provisions of the Convention.

42 Against the background of the grave concern caused by the increase in terrorist offences and the growing terrorist threat and aware of the precarious situation faced by those who suffer from terrorism, the preamble states the objective pursued by the Parties which is to take effective measures to prevent terrorism and to counter, in particular, public provocation to commit terrorist offences and recruitment and training for terrorism.

43 The preamble further excludes any justification of terrorist offences and the offences set forth in the Convention, while also recalling that all measures taken in the fight against terrorism must respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law.

44 The preamble recognises that the Convention is not intended to affect established principles relating to freedom of expression and freedom of association.

45 The eighth preambular paragraph is rather intended to cover established legal principles relating to freedom of expression and freedom of association as expressed in international and/or national law.

46 Finally, this provision recalls that terrorist offences are characterised by so-called terrorist motivation, stating that acts of terrorism "have the purpose by their nature or context to seriously intimidate a population or unduly compel a government or an international organisation to perform or abstain from performing any act or seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation." Terrorist motivation is not a substantial element in addition to the requirements laid down in the operative part for the offences set forth in this Convention.

Article 1 – Terminology

47 This article provides that for the purposes of the Convention, the term "terrorist offence" is taken to mean any of the offences within the scope of and as defined in one of the treaties listed in the Appendix.

48 When the CODEXTER considered this article, it bore in mind Parliamentary Assembly Recommendation 1550 (2002) which requested that the Council of Europe consider using the definition of terrorism adopted by the European Union in the European Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP) (1). The CODEXTER decided not to do so, given that the European Union definition had been agreed upon "for the purpose of the Common Position" and because it had not received the mandate to draft a comprehensive convention on terrorism but rather a limited scope specific instrument for the prevention of terrorism.

49 In paragraph 1, the offences are defined by reference to the treaties in the Appendix. The reference to the offences "within the scope and as defined" in the conventions listed in the Appendix indicates that, in addition to the definitions of crimes, there may be other provisions in these conventions that affect their scope of application. This reference covers both principal and ancillary offences. Nevertheless, when establishing the offences in their national law, Parties should bear in mind the purpose of the Convention and the principle of proportionality as set forth in Article 2 and Article 12, paragraph 2 respectively. The purpose of the Convention is to prevent terrorism and its negative effects on the full enjoyment of human rights and in particular the right to life. To this end, it obliges Parties to criminalise conduct that has the potential to lead to terrorist offences, but it does not aim at, and create a legal basis for, the criminalisation of conduct which has only a theoretical connection to such offences. Thus, the Convention does not address hypothetical chains of events, such as "provoking an attempt to finance a threat".

50 It should be recalled that the Appendix contains the same list of treaties as in Article 1, paragraph 1 of the European Convention on the Suppression of Terrorism as revised by its amending Protocol.

51 Paragraph 2 is based on similar provisions in other international treaties against terrorism, including the International Convention for the Suppression of the Financing of Terrorism (Article 2, paragraph 2).

52 Its purpose is to deal with the situation where a Party to the present Convention is not a party to a treaty listed in the Appendix, taking into account the consequences that this could cause for the Party concerned in terms of the treaty obligations incumbent upon it.

53 Parties are therefore given the possibility to exclude from the Appendix any of the treaties to which they are not a party. This would be done by means of a declaration at the time of expressing the consent to be bound by the Convention. Such a declaration would cease to have effect once the treaty in question entered into force for the declaring Party. The latter is required to inform the Secretary General of the Council of Europe, as depository of the Convention, of this fact.

Article 2 – Purpose

54 This article states explicitly the purpose of the Convention which is to enhance the efforts of Parties in preventing terrorism and dealing with its effects, 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 Parties.

55 Reference is made to the negative effects of terrorism on human rights, the right to life being expressly stressed for the reason that terrorist acts mostly result in the loss of human life.

Article 3 – National prevention policies

56 This article is closely connected with Article 12 in so far as they both draw on the same reference texts. However, there are clear differences between the two Articles. While the former deals with prevention policies, the latter comprises safeguards pertaining to the criminalisation obligations established in Articles 5 to 7 and 9.

57 The article is also connected with Article 4. While Article 3 aims at improving co-operation at domestic level, Article 4 is designed to foster co-operation at international level.

58 Article 3 refers to national prevention policies and particularly includes four aspects connected with the prevention of terrorism: a. training, education, culture, information, media and public awareness (paragraph 1); b. co-operation between public authorities (paragraph 2); c. promotion of tolerance (paragraph 3); and d. co-operation of the citizens with the public authorities (paragraph 4). The entire Article is worded in such a way as to make sure that it must not be understood as providing an exhaustive list of possible and appropriate measures.

59 Paragraph 1 requires Parties to take appropriate measures (in particular in the fields of law enforcement training, information and media, public education and awareness raising) for the purposes of preventing the commission of terrorist offences.

60 Reference to training is made in this paragraph because it covers a wider field than the domestic co-operation provided for in paragraph 2.

61 The term "other bodies" is taken to mean bodies other than law-enforcement or judicial authorities at various levels (central, regional, local), civil protection, etc.

62 Each Party is to determine the extent and manner of implementation, in a manner consistent with its system of government, and its laws and procedures applicable to these fields.

63 In carrying out prevention measures, Parties are to ensure respect for human rights, and a number of international human rights instruments that provide relevant human rights standards are listed.

64 The term "where applicable" is intended to exclude the application of those treaties to which a Party to this Convention is not a Party. This is due to the fact that the Convention is open to non-member States of the Council of Europe which therefore would not be Parties to the ECHR.

&65nbsp; Thus, such non-member States of the Council of Europe which become Parties to this Convention would be required to implement this paragraph pursuant to obligations they have undertaken with respect to the 1966 International Covenant on Civil and Political Rights (ICCPR), other applicable human rights instruments to which they are party, customary law, and their respective domestic laws.

66 Paragraph 2 focuses on specific measures that Parties are called upon to take for the purposes of enhancing co-operation between public authorities as a means of better preventing terrorist offences and their effects. A number of concrete examples of such measures are given to illustrate the point, some concern prevention as such, for instance through better protection of persons and/or facilities, others the readiness to deal with the effects of terrorist attacks by focusing on the civil emergencies they generate and the challenges they pose.

67 Paragraph 3 calls upon Parties to encourage inter-religious and cross-cultural dialogue with a view to reducing tensions and, in this manner, helping to prevent terrorist offences.

68 Here again, considerable flexibility is left to Parties to determine the precise extent and manner in which they implement this paragraph, in order to ensure consistency with their systems of government, including their laws and procedures applicable in the given context.

69 The term "tensions" is used broadly and covers any factor contributing to the rise of terrorism. Thus, these tensions may be of an ethnic, religious or other nature. They may also include situations of injustice for a variety of reasons.

70 As has been stated above, paragraph 4 deals with co-operation between citizens and public authorities for the purposes of the prevention of terrorism.

71 It starts by calling upon Parties to promote public awareness about the terrorist threat. The notion of public awareness is also included in paragraph 1 of this article, but contrary to that paragraph, where it is used in general terms, in this paragraph it is used specifically in relation to citizens.

72 This provision then goes on to invite the Parties to consider encouraging the public to provide specific, factual help to public authorities with a view to preventing the commission of the offences set forth in the Convention.

73 The wording of this paragraph is based on the United Nations Convention against Transnational Organized Crime, adopted in Palermo on 15 December 2000 (Article 31, paragraph 5) and on Resolution A/RES/55/25 adopted by the United Nations General Assembly on 15 November 2000 which, in its operative paragraph 6, calls upon all States to recognise the links between transnational organised criminal activities and terrorist offences, taking into account the relevant General Assembly resolutions, and to apply the United Nations Convention against Transnational Organized Crime in combating all forms of criminal activity, as provided therein.

Article 4 – International co-operation on prevention

74 This article deals with international co-operation and aims at enhancing the capacity of Parties to prevent terrorism. It calls upon Parties to assist and support each other in this respect and provides a series of possible means to this end, including exchanges of information and best practice, training and joint efforts, such as joint teams for analysis and investigation.

75 This provision is to be implemented subject to the capabilities of Parties and where deemed by them to be appropriate.

Articles 5 to 7 – criminalisation provisions – common aspects

76 Articles 5 to 7 provide the core provisions of the Convention, which require Parties to establish criminal offences concerning "public provocation to commit terrorist offences" (Article 5), "recruitment for terrorism" (Article 6) and "training for terrorism" (Article 7), coupled with a series of accessory crimes (Article 9).

77 These offences should not be considered as terrorist offences in the sense of Article 1, that is the offences established by the international conventions included in the Appendix.

78 They are criminal offences of a serious nature related to terrorist offences as they have the potential to lead to the commission of the offences established by the above-mentioned international conventions. However, they do not require that a terrorist offence be committed. The absence of such a requirement is affirmed by Article 8.

79 By the same token, the place where the terrorist offence might be committed is irrelevant for the purposes of the application of this Convention.

80 The offences set forth in Articles 5 to 7 have several elements in common: they must be committed unlawfully and intentionally.

81 The requirement of unlawfulness reflects the insight that the conduct described may be legal or justified not only in cases where classical legal defences are applicable but also where other principles or interests lead to the exclusion of criminal liability, for example for law enforcement purposes.

82 The expression "unlawfully" derives its meaning from the context in which it is used. Thus, without restricting how Parties may implement the concept in their domestic law, it may refer to conduct undertaken without authority (whether legislative, executive, administrative, judicial, contractual or consensual) or conduct that is otherwise not covered by established legal defences or relevant principles under domestic law.

83 The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority.

84 Furthermore, the offences must be committed "intentionally" for criminal liability to apply. In certain cases an additional specific intentional element forms part of the offence.

85 The drafters of the Convention agreed that the exact meaning of "intentionally" should be left to interpretation under national law.

Article 5 – Public provocation to commit a terrorist offence

86 This article resulted from thorough discussions and deep considerations, first by a working party of the CODEXTER, the CODEXTER-Apologie, which was called upon to carry out a survey of the situation in member and observer States and to consider an independent expert report prepared on this basis.

87 The CODEXTER-Apologie concluded in favour of focusing on public expressions of support for terrorist offences and/or groups; causality links – direct or indirect – with the perpetration of a terrorist offence; and temporal connections – ex ante or ex post – with the perpetration of a terrorist offence.

88 The Committee therefore focused on the recruitment of terrorists and the creation of new terrorist groups; the instigation of ethnic and religious tensions which can provide a basis for terrorism; the dissemination of "hate speech" and the promotion of ideologies favourable to terrorism, while paying particular attention to the case-law of the European Court of Human Rights concerning the application of Article 10, paragraph 2 of the ECHR, and to the experience of States in the implementation of their national provisions on "apologie du terrorisme" and/or "incitement to terrorism" in order to carefully analyse the potential risk of a restriction of fundamental freedoms.

89 Freedom of expression is one of the essential foundations of a democratic society and applies, according to the case-law of the European Court of Human Rights (see, for example, the Lingens v. Austria judgment of 8 July 1986, HUDOC REF 000000108), not only to ideas and information that are favourably received or regarded as inoffensive but also to those that "offend, shock or disturb".

90 However, in contrast to certain fundamental rights which are absolute rights and therefore admit no restrictions, such as the prohibition of torture and inhuman and degrading treatment or punishment (Article 3 of the ECHR), interference with, or restrictions on freedom of expression may be allowed in highly specific circumstances. Article 10, paragraph 2 of the ECHR lays down the conditions under which restrictions on, or interference with, the exercise of freedom of expression are admissible under the ECHR, while Article 15 of the ECHR provides for possible derogations in time of emergency.

91 Thus, for instance, incitement to racial hatred cannot be considered admissible on the grounds of the right to freedom of expression (see Article 9, paragraph 2 of the Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965). The same goes for incitement to violent terrorist offences, and the Court has already held that certain restrictions on messages that might constitute an indirect incitement to violent terrorist offences are in keeping with the ECHR (see Hogefeld v. Germany, 20 January 2000, HUDOC REF 00005340).

92 The question is where the boundary lies between indirect incitement to commit terrorist offences and the legitimate voicing of criticism, and this is the question that the CODEXTER addressed.

93 The current provision is construed on the basis of the Additional Protocol to the Cybercrime Convention concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS No. 189, Article 3).

94 In the present Convention, Article 5, paragraph 1 defines public provocation to commit a terrorist offence as "the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed."

95 When drafting this provision, the CODEXTER bore in mind the opinions of the Parliamentary Assembly (Opinion No. 255 (2005), paragraph 3.vii and following), and of the Commissioner for Human Rights of the Council of Europe (document BcommDH (2005) 1, paragraph 30 in fine) which suggested that such a provision could cover "the dissemination of messages praising the perpetrator of an attack, the denigration of victims, calls for funding for terrorist organisations or other similar behaviour" which could constitute indirect provocation to terrorist violence.

96 This provision uses a generic formula as opposed to a more casuisticone and requires Parties to criminalise the distributing or otherwise making available of a message to the public advocating terrorist offences. Whether this is done directly or indirectly is irrelevant for the application of this provision.

97 Direct provocation does not raise any particular problems in so far as it is already a criminal offence, in one form or another, in most legal systems. The aim of making indirect provocation a criminal offence is to remedy the existing lacunae in international law or action by adding provisions in this area.

98 The provision allows Parties a certain amount of discretion with respect to the definition of the offence and its implementation. For instance, presenting a terrorist offence as necessary and justified may constitute the offence of indirect incitement.

99 However, its application requires that two conditions be met: first, there has to be a specific intent to incite the commission of a terrorist offence, which is supplemented with the requirements in paragraph 2 (see below) that provocation be committed unlawfully and intentionally.

100 Second, the result of such an act must be to cause a danger that such an offence might be 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 in the sense established by the case-law of the European Court of Human Rights. The significance and the credible nature of the danger should be considered when applying this provision in accordance with the requirements of domestic law.

101 s far as provocation of the offences set forth in the International Convention for the Suppression of the Financing of Terrorism is concerned, it should be stressed that such offences may play an important role in the chain of events that leads to the commission of violent terrorist offences. While the prospect of violent crime in such cases is fairly remote from the act of provocation, it is what ultimately justifies the criminalisation of public provocation to commit the offence of terrorist financing.

102 The term "distribution" refers to the active dissemination of a message advocating terrorism, while the expression "making available" refers to providing that message in a way that is easily accessible to the public, for instance, by placing it on the Internet or by creating or compiling hyperlinks in order to facilitate access to it.

103 The term "to the public" makes it clear that private communications fall outside the scope of this provision.

104 In order to make a message available to the public, a variety of means and techniques may be used. For instance, printed publications or speeches delivered at places accessible to others, the use of mass media or electronic facilities, in particular the Internet, which provides for the dissemination of messages by e-mail or for possibilities such as the exchange of materials in chat rooms, newsgroups or discussion fora.

105 Further guidance is provided by the case-law of the European Court of Human Rights. In this connection, reference should be made to the Collection of relevant case law of the European Court of Human Rights prepared for the CODEXTER (document CODEXTER (2004)19).

Article 6 – Recruitment for terrorism

106 This article requires Parties to criminalise the recruitment of possible future terrorists, understood as solicitation to carry out terrorist offences whether individually or collectively, whether directly committing, participating in or contributing to the commission of such offences.

107 For the purposes of paragraph 1, a Party may choose to interpret the terms "association or group" to mean "proscribed" organisations or groups in accordance with its national law and Parties can so declare in accordance with the general principles of international law.

108 Solicitation can take place by various means, for instance, via the Internet or directly by addressing a person.

109 For the completion of the act, it is not necessary that the addressee actually participate in the commission of a terrorist offence or that he or she join a group for that purpose. Nevertheless, for the crime to be completed, it is necessary that the recruiter successfully approach the addressee.

110 If the execution of the crime is commenced but not completed (for example, the person is not persuaded to be recruited, or the recruiter is apprehended by law enforcement authorities before successfully recruiting the person), the conduct is still punishable as an attempt to recruit under Article 9, paragraph 2.

111 A Party is free to use the term "solicit" in its domestic implementing laws or different terminology for purposes of clarity under its national legal system.

112 What is important is that implementation of Article 6 and Article 9, paragraph 2 together results in the criminalisation of the completed, as well as commenced but not completed, recruitment conduct described above, and as has already been said, the solicitation effectively takes place regardless of whether the addressees of the solicitation actually participate in the commission of a terrorist offence or join an association or group for that purpose.

113 Paragraph 1 requires that the recruiter intends that the person or persons he or she recruits commit or contribute to the commission of a terrorist offence or join an association or group for that purpose.

Article 7 – Training for terrorism

114 The CODEXTER considered that this provision was closely connected with the provision of the International Convention for the Suppression of the Financing of Terrorism, listed in the Appendix to the Convention. While the latter criminalises the provision of financial resources to terrorists or for terrorist purposes, this provision criminalises the provision of know-how.

115 Thus, this article requires Parties to criminalise the supplying of know-how for the purpose of carrying out or contributing to the commission of a terrorist offence. This is defined as providing instruction in methods or techniques that are suitable for use for terrorist purposes, including in the making or use of explosives, firearms and noxious or hazardous substances.

116 This provision does not criminalise the fact of receiving such know-how or the trainee.

117 The Convention does not contain a definition of weapons, firearms and explosives, or noxious or hazardous substances, which are generic terms. They are characterised by existing international treaties and national legislation.

118 Thus, the term "explosive" could be defined according to the International Convention for the Suppression of Terrorist Bombings, Article 1, paragraph 3.a as "an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage."

119 The term "firearm" could be understood within the meaning of Appendix I to the European Convention on the Control of the Acquisition and Possession of Firearms by Individuals (ETS No. 101).

120 The term "other weapons" could be understood in the sense of "lethal weapon" as defined by the International Convention for the Suppression of Terrorist Bombings, Article 1, paragraph 3.b which characterises it as "a weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material."

121 As concerns the term "noxious or hazardous substances", more specific references can be found, for instance, in the International Maritime Organisation (IMO) Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol, Article 1, paragraph 5) which defines them by reference to lists of substances included in various IMO conventions and codes. These include oils; other liquid substances defined as noxious or dangerous; liquefied gases; liquid substances with a flashpoint not exceeding 60°C; dangerous, hazardous and harmful materials and substances carried in packaged form; and solid bulk materials defined as possessing chemical hazards.

122 For such conduct to be criminally liable, it is necessary that the trainer know that the skills provided are intended to be used for the commission of or the contribution to commit a terrorist offence. This requirement of knowledge is complemented with the two additional requirements of unlawfulness and intention stated in paragraph 2, as explained above in the paragraphs relating to the common aspects of Articles 5 to 7 (see paragraphs 76 to 85).

Article 8 – Irrelevance of the commission of a terrorist offence

123 When deciding on the title of this article, the Committee based itself on the French version of the text, namely: "Indifférence du résultat". Both language versions convey the same message, that is: for an act to constitute an offence as set forth in Articles 5 to 7 of this Convention, it shall not be necessary that a terrorist offence be actually committed. The same holds true for the accessory crimes set forth in Article 9.

124 This article is based on an equivalent provision in Article 2, paragraph 3 of the International Convention for the Suppression of the Financing of Terrorism.

125 It should be recalled that the negotiators had a number of common understandings flowing from the obligation set forth in Articles 5 to 7 to punish public provocation, recruitment and training, even where no terrorist offence is ultimately committed.

126 For instance, it was understood that since no terrorist offence need be carried out at all for the conduct in Articles 5 to 7 to be punishable, it is consequently not necessary that the provocation, recruitment or training be aimed at the commission of a terrorist offence in the territory of the Party concerned.

127 Rather, each Party has the obligation to punish the crimes set forth in Articles 5 to 7 and 9, irrespective of whether it may have been envisaged that the ultimate terrorist offence would be committed in that Party or elsewhere.

Article 9 – Ancillary offences

128 This article is based on similar provisions in existing international conventions against terrorism, including, most recently, the International Convention for the Suppression of Terrorist Bombings (Article 2, paragraphs 2 and 3) and the International Convention for the Suppression of the Financing of Terrorism (Article 2, paragraphs 4 and 5).

129 Its purpose is to establish additional offences related to attempts at or complicity in the commission of the offences defined in this Convention.

130 As with all the offences established in the Convention, attempt and participation as an accomplice must be committed intentionally. The term "participation as accomplice" comprises the concept of "aiding and abetting".

131 While paragraph 1 refers to the accessory crimes in relation to the offences established in Articles 5 to 7, paragraph 2 limits the criminalisation of attempt to the offences established in Articles 6 to 7, and excludes it in relation to public provocation to commit terrorist offences.

132 Paragraph 1 requires Parties to establish as a criminal offence the participation as an accomplice in the commission of any of the offences under Articles 5 to 7. Liability for such complicity arises where the person who commits a crime established in the Convention is aided by another person who also intends that the crime be committed. For example, although public provocation to commit a terrorist offence through the Internet requires the assistance of service providers as a conduit, a service provider that does not have criminal intent cannot incur liability under this provision.

133 With respect to paragraph 2 on attempt, the offence covered by Article 5 or elements thereof were considered to be conceptually difficult to attempt. Moreover, unlike in paragraph 1, the offence must be established not only under but also in accordance with national law. In so far as the mental elements required for attempt are furnished by domestic law, the notion of attempt may differ from country to country.

Article 10 – Liability of legal entities

134 This article deals with the liability of legal entities or persons and is based on a similar provision of the United Nations Transnational Organized Crime Convention (Article 10), although it uses the term "entity" instead of "persons" as it was considered to have a wider scope.

135 It is consistent with the current legal trend to recognise the liability of legal entities. It is intended to impose liability on corporations, associations and similar legal persons for the criminal actions undertaken for the benefit of that legal person.

136 Under paragraph 1, Parties are required to establish the liability of legal entities in accordance with their legal principles.

137 Liability under this article may be criminal, civil or administrative. Each Party has the flexibility to choose to provide for any or all of these forms of liability, in accordance with the legal principles of each Party, as long as it meets the criteria of Article 11, paragraph 3, that the sanction, whether criminal or not, should be "effective, proportionate and dissuasive" and should include monetary sanctions.

138 Paragraph 3 clarifies that corporate liability does not exclude individual liability.

Article 11 – Sanctions and measures

139 This article deals with the punishment of the offences set forth in the Convention and is consistent with the general trend in international criminal law. Thus, similar provisions are to be found, for instance, in the United Nations Convention against Corruption (Article 26), the United Nations Convention against Transnational Organized Crime, (Article 10) and the International Convention for the Suppression of the Financing of Terrorism (Articles 4, paragraph 2 and 5, paragraph 3).

140 Paragraph 1 requires that the penalties be effective, proportionate and dissuasive. While paragraph 2 invites Parties to consider previous convictions in other States for the purposes of determining the sentence and, where this is possible according to domestic law, of determining recidivism.

141 Paragraph 3 relates to Article 10 more specifically as it deals with the sanctions to be imposed upon legal entities whose liability is established in accordance with Article 10 and shall also be subject to sanctions that are effective, proportionate and dissuasive. Such sanctions can be of a criminal or non criminal nature, that is: administrative or civil. Parties are compelled, under this paragraph, to provide for the possibility of imposing monetary sanctions on legal persons.

142 This article leaves open the possibility of other sanctions or measures reflecting the seriousness of the offence, for example, measures could include an injunction or forfeiture. It leaves Parties the discretionary power to create a system of criminal offences and sanctions that is compatible with their existing national legal systems.

Article 12 – Conditions and safeguards

143 This is one of the key provisions of the Convention by which the negotiators purport to enhance the efficiency of the fight against terrorism while ensuring the protection of human rights and fundamental freedoms.

144 The formulation of this article is similar to that of Article 3 in relation to the human rights obligations and standards that are referred to therein.

145 This article requires Parties to ensure respect for human rights in establishing and applying the offences set forth in Articles 5 to 7 and 9.

146 A number of international human rights instruments are listed that provide relevant human rights standards to which Parties to the Convention must adhere as they represent obligations arising from international law. The list is not exhaustive.

147 These instruments include the ECHR and its additional Protocols Nos. 1, 4, 6, 7, 12 and 13 (ETS Nos. 005, 009, 046, 114, 117, 177 and 187), in respect of European States that are Parties to them.

148 They also include other applicable human rights instruments in respect of States in other regions of the world (for example, the 1969 American Convention on Human Rights and the 1981 African Charter on Human Rights and Peoples’ Rights) which are Parties to these instruments, as well as the ICCPR and other universal human rights instruments. In addition, similar protection is provided under the laws of most States.

149 As in Article 3, the term "where applicable" is used here to indicate that, because the Convention is open to non-member States of the Council of Europe, the human rights framework in the ECHR would not be applicable to non-member States which are Parties to the present Convention. Rather, non-member States of the Council of Europe will implement this paragraph pursuant to obligations they have undertaken with respect to the ICCPR, other applicable human rights instruments to which they are party, customary law, and their respective domestic laws.

150 An additional safeguard is provided by paragraph 2 which requires that the establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 "be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society" while excluding "any form of arbitrariness or discriminatory or racist treatment".

151 The principle of proportionality shall be implemented by each Party in accordance with the relevant principles of its domestic law. For European countries, this will be derived from the principles of the ECHR, its applicable case-law, and national legislation and case-law. This principle requires that the power or procedure shall be proportional to the nature and circumstances of the offence.

152 For non-member States, the principle of proportionality is applied through constitutional or other domestic legal norms applied for the purposes of fixing an appropriate range of potential punishments in light of the conduct aimed at, and of imposing an appropriate sentence in an individual criminal prosecution. The exclusion of arbitrary, discriminatory or racist treatment is similarly to be carried out through the application of relevant constitutional or other domestic legal norms.

Article 13 – Protection, compensation and support of victims of terrorism

153 This article is consistent with recent developments in international law and the growing concern for the victims of terrorism as reflected, for instance, in the European Convention on Compensation of Victims of Violent Crimes (ETS No. 116, Article 2), the Council of Europe Guidelines on Human Rights and the Fight against Terrorism (Guideline No. XVII) and the additional Guidelines on the protection of victims of terrorism (principle No. 1) at regional level, or at universal level in United Nations Security Council resolutions, including Resolution 1566 (2004) of 8 October 2004; and in the International Convention for the Suppression of the Financing of Terrorism (Article 8, paragraph 4).

154 Furthermore, this issue forms part of the Council of Europe’s priority activities against terrorism, as requested by the 25th Conference of European Ministers of Justice in October 2003 (see Resolution No. 1 on combating terrorism). The CODEXTER therefore pursues work in this area with a view to promoting exchanges of information and best practice among member States.

155 More specifically, this provision requires Parties to adopt measures to protect and support the victims of terrorism that has been committed within their own territory. These measures which are subject to domestic legislation may include, for instance, financial assistance and compensation for victims of terrorism and their close family members, in the framework of national schemes.

156 The CODEXTER was also provided with the opinion of the Commissioner for Human Rights, who considered that the protection afforded to victims might also include many other aspects, such as emergency and long-term assistance, psychological support, effective access to the law and the courts (in particular access to criminal procedures), access to information and the protection of victims' private and family lives, dignity and security, particularly when they co-operate with the courts.

Article 14 – Jurisdiction

157 This article establishes a series of criteria under which Parties are obliged to establish jurisdiction over the offences set forth in the Convention and is based on similar provisions to be found in most international conventions against terrorism, as well as in the Cybercrime Convention (ETS No. 185).

158 Paragraph 1.a is based upon the principle of territoriality. Each Party is required to establish jurisdiction for the offences set forth in the Convention that are committed in its territory. This is notwithstanding what has been said in relation to Articles 5 to 7 regarding the irrelevance of the place where a terrorist offence, as defined in Article 1, may be committed as a result of the commission of any of the offences set forth in Articles 5 to 7 and 9.

159 Paragraph 1.b is based upon a variant of the principle of territoriality. It requires each Party to establish criminal jurisdiction over offences committed upon ships flying its flag or aircraft registered under its laws.

160 This obligation is already implemented as a general matter in the laws of many States, since such ships and aircraft are frequently considered to be an extension of the territory of the State. This type of jurisdiction is most useful where the ship or aircraft is not located in its territory at the time of the commission of the crime, as a result of which paragraph 1.a would not be available as a basis to assert jurisdiction. If the crime is committed on a ship or aircraft that is beyond the territory of the flag Party, there may be no other State that would be able to exercise jurisdiction. In addition, if a crime is committed aboard a ship or aircraft which is merely passing through the waters or airspace of another State, the latter State may face significant practical impediments to the exercise of its jurisdiction, and it is therefore useful for the State of registry to also have jurisdiction.

161 Paragraph 1.c is based upon the principle of nationality. The nationality theory is most frequently applied by States applying the civil law tradition. It provides that nationals of a State are obliged to comply with its domestic law even when they are outside its territory. Under this provision, if a national commits an offence abroad, the Party is obliged to have the ability to prosecute him or her if the act is also an offence under the law of the Party in which it was committed or the act has been committed outside the territorial jurisdiction of any Party.

162 Paragraph 2 provides a second set of criteria on the basis of which Parties have the possibility, at their discretion, of establishing their jurisdiction over the offences set forth in the Convention.

163 This provision incorporates the latest trends in international criminal law and is based on similar provisions in the International Convention for the Suppression of the Financing of Terrorism (Article 7, paragraph 2) and the International Convention for the Suppression of Terrorist Bombings (Article 6, paragraph 2).

164 Thus, paragraph 2.a covers cases where the offence is directed towards the commission of an offence in the territory of or against a national of that Party.

165 Paragraph 2.b covers the case of offences against the governmental premises of a Party abroad, including its embassies and consulates.

166 Paragraph 2.c covers cases where an offence is committed to compel that Party to do or abstain from doing any act.

167 Paragraph 2d. contains a traditional criterion for jurisdiction and covers cases where the offence is committed by a stateless person who has his or her habitual residence in the territory of that Party.

168 The criterion in paragraph 2.e is closely related to the one in paragraph 1.b with the specific feature that the aircraft on which the offence is committed must be operated by the Government of that Party.

169 Paragraph 3 establishes an additional criterion for jurisdiction which is of a mandatory nature and is related to cases falling under the principle of aut dedere aut judicare established in Article 18 by requiring a Party to establish its jurisdiction where the alleged offender is present in its territory and it does not extradite that person to any of the Parties whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested Party.

170 Finally, it should be noted that the bases of jurisdiction set forth in paragraph 1 are not exclusive. Paragraph 4 permits Parties to establish, in conformity with their domestic law, other types of criminal jurisdiction as well.

171 Paragraph 5 covers conflicts of jurisdiction, where more than one Party claims jurisdiction over an alleged offence set forth in this Convention and invites the Parties involved to consult with a view to determining the most appropriate jurisdiction for prosecution.

172 It is based on an identical provision in the Cybercrime Convention (Article 22, paragraph 5) which is most relevant in this case. In the case of crimes committed by use of computer systems or through the Internet, for instance public provocation to commit a terrorist offence, there will be occasions in which more than one Party has jurisdiction over some or all of the participants in the crime.

173 Thus, in order to avoid duplication of effort, unnecessary inconvenience for witnesses, or competition among law enforcement officials of the Parties concerned, or to otherwise facilitate the efficiency and fairness of the proceedings, the affected Parties are to consult in order to determine the proper venue for prosecution. In some cases, it will be most effective for the Parties concerned to choose a single venue for prosecution; in others, it may be best for one Party to prosecute some participants, while one or more other Parties pursue others. Either result is permitted under this paragraph. Finally, the obligation to consult is not absolute, but is to take place "where appropriate." Thus, for example, if one of the Parties knows that consultation is not necessary (for example, it has received confirmation that the other Party is not planning to take action), or if a Party is of the view that consultation may impair its investigation or proceedings, it may delay or decline consultation.

Article 15 – Duty to investigate

174 This article is based on similar provisions in most international treaties against terrorism, including the International Convention for the Suppression of the Financing of Terrorism (Article 9) and the International Convention for the Suppression of Terrorist Bombings (Article 7).

175 Paragraph 1 calls upon a Party to investigate the information provided to it that a person who has committed or who is alleged to have committed an offence set forth in this Convention may be present in its territory.

176 The term "information" in this paragraph is not to be understood necessarily as having the same meaning as the same term used in Article 22, paragraph 1, since the information may come from various sources.

177 It is up to national legislation to define the conditions that the information will have to satisfy in terms of reliability in the context of legal proceedings or for the purposes of law enforcement.

178 Once such conditions are met, by virtue of paragraph 2, the Party in whose territory the offender or alleged offender is present is called upon to take the appropriate measures under its domestic law so as to ensure that person’s presence for the purposes of prosecution or extradition. In relation to such measures, paragraph 3 provides for a set of rights relating to the Vienna Convention on Consular Relations (see Article 36, paragraph 1) which are self-explanatory and shall be exercised in conformity with the laws of the Party unless they do not enable full effect to be given to the purposes for which the rights are intended (paragraph 4) and without prejudice to the right of any Party having a claim of jurisdiction in accordance with Article 14, paragraphs 1.c and 2.d to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

Article 16 – Non application of the Convention

179. This article provides for the non-application of the Convention in cases of a purely national nature, that is: where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State, and no other State has jurisdiction.

180. It is based on a similar provision in the International Convention for the Suppression of the Financing of Terrorism (Article 3) and the International Convention for the Suppression of Terrorist Bombings (Article 3).

181. This provision does not modify the regime established by the Convention, particularly in so far as the establishment of criminal offences in pursuance of Articles 5 to 7 and 9 should comply with the conditions and safeguards provided for in Article 12.

182. Neither does it exclude or limit the possibility for Parties to criminalise the acts provided for in the Convention, even when the conditions of this article are met, that is when only "national" elements are present.

183 This provision has the primary effect of excluding the application of the provisions on extradition or mutual assistance and is closely connected with the provision on jurisdiction, Article 14. The application of this provision is complicated by the fact that some of the offences may be committed through the Internet.

Article 17 &#