Text of
Convention 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-�-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-�-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.
|
Explanatory Report
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 S�rby (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: "Indiff�rence du
r�sultat". 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 � International co-operation in criminal matters
184. This article deals with mutual assistance, within the meaning
of the European Convention on Mutual Assistance in Criminal Matters
and bilateral mutual assistance treaties in force between Parties,
in criminal investigations and related proceedings concerning the
offences set forth in the Convention.
185 Paragraph 1 is based on the International Convention for the
Suppression of the Financing of Terrorism (Article 12, paragraph 1)
and requires Parties to provide each other mutual assistance in the
investigation of and in the legal proceedings relating to the
offences set forth in the Convention.
186 Parties are called upon to implement the obligations arising
from paragraph 1 in conformity with applicable treaties or
arrangements on mutual legal assistance and, where such treaties or
arrangements do not exist, in accordance with their domestic law
(paragraph 2).
187 Paragraph 3 is based on the United Nations Convention against
Transnational Organized Crime (Article 18, paragraph 2) and
specifies the requirements in paragraphs 1 in relation to legal
entities, consistently with the provisions of Article 10.
188 Finally, paragraph 4, which is based on the International
Convention for the Suppression of the Financing of Terrorism
(Article 12, paragraph 4) font-family:Verdana;
mso-bidi-font-family:Arial'>and the United Nations Transnational
Organized Crime Convention (Article 18, paragraph 30) invites
Parties to establish additional co-operation mechanisms for the
purposes of sharing information and evidence in the prosecution of
the offences set forth in the Convention.
Article 18 � Extradite or prosecute
189 This article is based on a similar provision in the
International Convention for the Suppression of Terrorist Bombings
(Article 8) and the International Convention for the Suppression of
the Financing of Terrorism (Article 10). It establishes an
obligation on the requested Party to submit the case to its
competent authorities for the purpose of prosecution if it refuses
extradition (aut dedere aut judicare).
190 This obligation is subject to conditions similar to those laid
down in paragraph 1 of Article 14: the suspected offender must have
been found in the territory of the requested Party, which must have
received a request for extradition from a Party whose jurisdiction
is based on a rule of jurisdiction existing equally in its own law.
191 The case must be submitted to the prosecuting authority without
exception and without undue delay. Investigation and prosecution
follow the rules of law and procedure in force in the requested
Party for offences of a comparably serious nature. The same goes for
the judicial decision concerning the case.
192 The Convention does not provide an indication of what is meant
by "offence of a serious nature". It will be up to national
authorities to characterise such an offence. However, recent
international treaties provide standards in this respect. For
instance, the United Nations Convention against Transnational
Organized Crime defines � for the purpose of that Convention �
"serious crimes" as "conduct constituting an offence punishable by a
maximum deprivation of liberty of at least four years or a more
serious penalty."
193 Paragraph 2 covers cases where a "Party extradites or otherwise
surrenders 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."
194 It provides that the requirements of paragraph 1 are met where
the requesting and the requested Party agree with such conditional
extradition or surrender.
Article 19 � Extradition
195 This article is based on similar provisions in the International
Convention for the Suppression of Terrorist Bombings (Article 9) and
in the International Convention for the Suppression of the Financing
of Terrorism (Article 11).
196 Paragraph 1 provides for the automatic inclusion, as an
extraditable offence, of any of the offences set forth in the
Convention into any existing extradition treaty concluded between
Parties. Moreover, Parties undertake to include such offences in
every extradition treaty they may conclude.
197 Furthermore, paragraph 2 introduces the possibility for a Party
which makes extradition conditional on the existence of a treaty,
and receives a request for extradition from another Party with which
it has no extradition treaty, to consider the Convention as a legal
basis for extradition in relation to any of the offences set forth
in the Convention. Such a decision is at the discretion of the
requested Party, which may subject its decision to extradite to
conditions provided by national law, for example that the person
subject to extradition will not be exposed to the death penalty (see
Article 21).
198 As for Parties which do not make extradition conditional on the
existence of a treaty, paragraph 3 requires them to recognise the
offences set forth in the Convention as extraditable offences
between themselves, subject to the conditions provided by the law of
the requested Party.
199 Paragraph 4 is related to the Convention�s provisions on
jurisdiction (Article 14) and aims at facilitating international
co-operation by providing that, for the purposes of extradition
between the Parties, the offences set forth in the Convention be
treated as if they had been committed in the territory of the
Parties that have established jurisdiction in accordance with
Article 14.
200 Paragraph 5 is related to Article 26, paragraph 2 as it provides
that the provisions of all extradition treaties and arrangements
between Parties with regard to offences set forth in the Convention
shall be deemed to be modified between Parties to the extent that
they are incompatible with this Convention.
201 In this connection, the term "arrangements" is intended to cover
extradition procedures which are not enshrined in a formal treaty,
such as those existing between Ireland and the United Kingdom. For
that reason, the term "accords" in the French text is not to be
understood as designating a formal international instrument.
202 One of the consequences of this paragraph is the modification of
Article 3, paragraph 1 of the European Convention on Extradition.
For States which are Parties to both the present Convention and the
European Convention on Extradition, Article 3, paragraph 1 of the
latter is modified, in so far as it is incompatible with the new
obligations arising from the former. The same applies to similar
provisions contained in bilateral treaties and arrangements which
are applicable between Parties to this Convention.
Article 20 � Exclusion of the political exception clause
203 This article is based on similar provisions in the International
Convention for the Suppression of Terrorist Bombings (Article 11)
and the International Convention for the Suppression of the
Financing of Terrorism (Article 14) and was later incorporated in
the Protocol amending the European Convention on the Suppression of
Terrorism.
204 It aims at facilitating international co-operation by excluding
the political character of the offences set forth in the Convention
for the purposes of extradition or mutual legal assistance.
205 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.
206 Thus, it modifies the consequences of existing extradition and
mutual legal assistance agreements and arrangements with regard to
the evaluation of the nature of these offences. It eliminates the
possibility for the requested Party to invoke the political nature
of the offence in order to oppose an extradition or mutual legal
assistance request.
207 It does not, however, create an obligation to extradite, as the
Convention is not an extradition treaty as such. The legal basis for
extradition remains the extradition treaty, arrangement or law
concerned. Nevertheless, under Article 19 of the Convention, a Party
may use the Convention as a legal basis for extradition at its
discretion.
208 The terms "political offence" and "offence connected with a
political offence" were taken from Article 3, paragraph 1 of the
European Convention on Extradition, which is modified to the effect
that Parties to the present Convention may no longer consider as
"political" any of the offences set forth in the Convention.
209 The term "offence inspired by political motives" is intended to
supplement the list of cases in which the political nature of an
offence cannot be invoked. Reference to the political motives of an
act of terrorism is made in Resolution (74) 3 on international
terrorism, adopted by the Committee of Ministers of the Council of
Europe on 24 January 1974.
210 In paragraph 2, the term "Without prejudice to the application
of (�) the Vienna Convention on the Law of Treaties (�) to the other
articles in the Convention" indicates that reservations to other
articles of the Convention would still be subject to the general
regime of the Vienna Convention on the Law of Treaties.
211 This paragraph allows Parties to make reservations in respect of
the application of paragraph 1 of this Article. The Convention thus
recognises that a Party might be impeded, for instance for legal or
constitutional reasons, from fully accepting the obligations arising
from paragraph 1, whereby certain offences cannot be regarded as
political for the purposes of extradition. However, this possibility
has been made subject to a number of conditions.
212 If a Party avails itself of this possibility of making a
reservation it can subsequently refuse extradition in respect of the
offences set forth in the Convention. However, it is under the
obligation to apply the reservation on a case-by-case basis and to
give reasons for its decision. However, the requested Party remains
free to grant or to refuse extradition, subject to the conditions
referred to in the other paragraphs of this article.
213 The notion of "duly reasoned decision" should be taken to mean
an adequate, clear and detailed written statement explaining the
factual and legal reasons for refusing the extradition request.
214 Paragraph 3 provides for the withdrawal of reservations made in
pursuance of paragraph 2 and of partial or conditional reservations.
215 Paragraph 4 in particular lays down the rule of reciprocity in
respect of the application of paragraph 1 by a Party having availed
itself of a reservation. This provision repeats the provisions
contained in Article 26, paragraph 3 of the European Convention on
Extradition. The rule of reciprocity applies equally to reservations
not provided for in this Article.
216 Paragraphs 5 and 6 deal with the temporal validity of
reservations. Paragraph 5 provides that reservations have a limited
validity of three years from the date of entry into force of the
Convention. After this deadline they will lapse, unless they are
expressly renewed. Paragraph 6 provides a procedure for the
automatic lapsing of non-renewed reservations. Where a Party upholds
its reservation, it shall provide an explanation of the grounds
justifying its continuance. Paragraphs 5 and 6 reflect provisions of
the Criminal Law Convention on Corruption of 27 January 1999 (ETS
No. 173, Article 38, paragraphs 1 and 2). They have been added with
a view to ensuring that reservations are regularly reviewed by the
Parties which have entered them.
217 If extradition is refused on the grounds of a reservation made
in accordance with paragraph 2, Articles 14, 15 and, 18 apply. This
is explicitly stated in paragraph 7, which reflects and reinforces
the principle of aut dedere aut judicare by a duty to forward the
decision promptly to the requesting Party, as provided in paragraph
8.
218 In paragraph 7, an obligation for the requested Party to submit
the case to the competent authorities for the purpose of prosecution
arises as a result of the refusal of the extradition request made by
the requesting Party. Nevertheless, the requesting and the requested
Party may agree that the case will not be submitted to the competent
authorities of the requested Party for prosecution. For instance,
where the requesting or the requested Party consider that there is
not sufficient evidence to bring a case in the requested Party, it
might be more appropriate to pursue their investigations until the
case is ready for prosecution. Thus, the strict application of the
maxima aut dedere aut judicare is balanced with a degree of
flexibility which reflects the necessity for full co-operation
between the requesting and the requested Parties for the successful
prosecution of such cases.
219 Where the requested Party submits the case to its competent
authorities for the purpose of prosecution, the latter are required
to consider and decide on the case in the same manner as any offence
of a serious nature under the law of that Party. The requested Party
is required to communicate 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 in Article 30 for information.
220 Where a requesting Party considers that a requested reserving
Party has disregarded the conditions of paragraphs 2 and/or 7
because, for instance, no judicial decision on the merits has been
taken within a reasonable time in the requested Party in accordance
with paragraph 7, it has the possibility of bringing the matter
before the Consultation of the Parties pursuant to paragraph 8. The
Consultation of the Parties is competent to consider the matter and
issue an opinion on the conformity of the refusal with the
Convention. This opinion is submitted 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 Parties to the Convention.
221 The notion of "without undue delay" used in paragraph 7 and
"within a reasonable time" in paragraph 8 shall be understood as
synonyms. They are flexible concepts which, in the words of the
European Court of Human Rights must be assessed in the light of the
particular circumstances of the case and having regard to the
criteria laid down in the case-law of the Court, in particular the
complexity of the case, the conduct of the subject of the
extradition request and of the relevant authorities (see, among many
other judgments: P�lissier and Sassi v. France of 25 March 1999,
[GC], No. 25444/94, ECHR 1999-II, and Philis v. Greece (No. 2) of 27
June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, �
35) (see Zannouti v. France of 31 July 2001, in French only).
Article 21 � Discrimination clause
222 This article is based on a similar provision in the
International Convention for the Suppression of the Financing of
Terrorism (Article 15) and concerns the grounds for refusing
extradition and mutual legal assistance.
223 It is intended to emphasise the aim of the Convention, which is
to assist Parties in the prevention of terrorism which constitutes
an attack on the fundamental rights to life and liberty of persons.
While Articles 17 to 20 are international co-operation tools to
strengthen the ability of law enforcement to act effectively, this
article ensures that the Convention complies with the requirements
of the protection of human rights and fundamental freedoms as they
are enshrined in the ECHR or other applicable international
instruments. This is all the more important because of the very
nature of the offences set forth in the Convention.
224 In this connection, it should be recalled that the Convention
does not seek to determine the grounds on which extradition or
mutual assistance may be refused, other than by reference to the
exception regarding political offences.
225 This article is intended to make this clear by reference to
certain existing grounds on which extradition or mutual assistance
may be refused. The Article is not, however, intended to be
exhaustive as to the possible grounds for refusal.
226 One of the purposes of this Article is to safeguard the
traditional right of asylum and the principle of non-refoulement.
Although the prosecution, punishment or discrimination of a person
on account of his or her race, religion, nationality or political
opinion is unlikely to occur in the member States of the Council of
Europe which, at the time of the adoption of this Convention, have
all, with the exception of one State which has recently joined the
Organisation, ratified the ECHR, it was considered appropriate to
insert this traditional provision (paragraph 1) in this Convention
also, particularly in view of the opening of the Convention to
non-member States (see Article 23 below). It is already contained in
Article 3, paragraph 2 of the European Convention on Extradition.
227 If a requested Party has substantial grounds for believing that
the real purpose of an extradition or mutual assistance request,
made for one of the offences set forth in the Convention, is to
enable the requesting Party to prosecute or punish the person
concerned for the political opinions he or she holds, the requested
Party may refuse to grant extradition.
228 The same applies where the requested Party has substantial
grounds for believing that the person�s position may be prejudiced
for political reasons, or for any of the other reasons mentioned in
this Article. This would be the case, for instance, if the person to
be extradited would, in the requesting Party, be deprived of the
rights of defence guaranteed by the ECHR.
229 Two additional paragraphs have been added to this Article,
bearing in mind, in particular, Parliamentary Assembly
Recommendation 1550 (2002) on Combating terrorism and respect for
human rights (paragraph 7.i) and the Guidelines on Human Rights and
the Fight against Terrorism (Guidelines IV, X, XIII and XV) adopted
by the Committee of Ministers on 11 July 2002. These had also been
added to the equivalent provision in the European Convention on the
Suppression of Terrorism by means of its amending Protocol.
230 These paragraphs explicitly recognise that Parties have no
obligation to extradite and can indeed refuse extradition on the
ground that the subject of the extradition request risks being
exposed to torture or to inhuman or degrading treatment or
punishment (paragraph 2) or, in certain circumstances, where the
person in question risks being exposed to the death penalty or to
life imprisonment without the possibility of parole (paragraph 3).
231 In paragraph 2, the reference to inhuman or degrading treatment
as a ground for refusal represents an addition to the formula used
in the European Convention on the Suppression of Terrorism as
revised by its amending Protocol and was requested by the
Parliamentary Assembly and the Commissioner for Human Rights of the
Council of Europe in their respective opinions on the draft of this
Convention. Furthermore, it was consistent with the Council of
Europe Guidelines on Human Rights and the Fight against Terrorism,
Guideline IV of which provides for the absolute prohibition of
torture and inhuman or degrading treatment or punishment in all
circumstances, and in particular during the arrest, questioning and
detention of a person suspected or convicted of terrorist
activities, irrespective of the nature of the acts that the person
is suspected of or for which he/she was convicted.
232 As stated above, these grounds for refusal already exist
independently of the Convention. For instance, the possibility of
refusing extradition where there is a risk of the death penalty
being carried out is provided in Article 11 of the European
Convention on Extradition, and Article 3 of the United Nations
Convention against Torture governs the issue of non-extradition
where there is a danger of torture. Nevertheless, like the GMT
before it, the CODEXTER considered it necessary to state them
explicitly, in order to stress the necessity to reconcile an
efficient fight against terrorism with respect for fundamental
rights, particularly in view of the opening of the Convention to
non-member States.
233 It is obvious that a Party applying this Article should provide
the requesting Party with reasons for its refusal to grant the
extradition request. It is by virtue of the same principle that
Article 18, paragraph 2 of the European Convention on Extradition
provides that "reasons shall be given for any complete or partial
rejection" and that Article 19 of the European Convention on Mutual
Assistance in Criminal Matters states that "reasons shall be given
for any refusal of mutual assistance".
234 If extradition is refused on human rights grounds, Article 18 of
the Convention applies and the requested Party must submit the case
to its competent authorities for the purpose of prosecution.
Article 22 � Spontaneous information
235 This article is based on a similar provision in the Second
Additional Protocol to the European Convention on Mutual Assistance
in Criminal Matters (Article 11), which in turn is based on other
international treaties, the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime (ETS No. 141,
Article 10) concerning paragraph 1 and the Convention on Mutual
Assistance in Criminal Matters between the member States of the
European Union (Article 6) concerning paragraphs 2 and 3.
236 It extends to mutual assistance in general following the trend
in other fields of criminality, for instance money laundering,
organised crime, cybercrime and corruption. Thus, it recognises the
possibility for Parties, without prior request, to forward to each
other information about investigations or proceedings which might
contribute to the common aim of responding to crime.
237 It should be noted that this provision introduces a possibility;
it does not place obligations on Parties. Moreover, it expressly
provides that the relevant exchanges are to be carried out within
the limits of national law.
238 The competent authorities in the "sending" Party are those
authorities who deal with the case in which the information came up;
the competent authorities in the "receiving" Party are the
authorities who are likely to use the information forwarded or who
have the powers to do so.
239 In accordance with paragraph 2, conditions may be attached to
the use of information provided under this article, and paragraph 3
provides that, if that should be the case, the receiving Party is
bound by those conditions.
240 In reality, the sending Party only binds the receiving Party to
the extent that the receiving Party accepts the unsolicited
information. By accepting the information, it also accepts to be
bound by the conditions attached to the transmission of that
information. In this sense, Article 9 creates a "take it or leave
it" situation.
241 The conditions attached to the use of the information may, for
example, be a condition that the information transmitted will not be
used or re-transmitted by the authorities of the receiving Party for
investigations or proceedings, as specified by the sending Party.
242 Some Parties might have difficulties in not accepting the
information once it has been transmitted, for example where their
national law puts a positive duty upon authorities who have access
to such information. Paragraph 4 therefore opens the possibility for
Parties to declare that information must not be transmitted without
their prior consent. Should the sending Party attach conditions to
the use of such information, if the receiving Party agrees to the
conditions, it must honour them.
Articles 23 to 32 � the final clauses
243 With some exceptions, the provisions contained in Articles 23 to
32 are, for the most part, based on the "Model final clauses for
conventions and agreements concluded within the Council of Europe"
approved by the Committee of Ministers at the 315th meeting of the
Deputies in February 1980.
244 As most of Articles 23 to 32 either use the standard language of
the model clauses or are based on long-standing treaty-making
practice at the Council of Europe, they do not call for specific
comments.
245 However, certain modifications of the standard model clauses or
some new provisions require some explanation. It is noted in this
context that the model clauses have been adopted as a non-binding
set of provisions. As the Introduction to the model clauses points
out, "these model final clauses are only intended to facilitate the
task of committees of experts and avoid textual divergences which
would not have any real justification. The model is in no way
binding and different clauses may be adapted to fit particular
cases."
Article 23 � Signature and entry into force
246 This article provides the conditions for signature and entry
into force of the Convention.
247 Paragraph 1 has been drafted following several precedents
established in other conventions elaborated within the framework of
the Council of Europe, for instance, the Convention on the Transfer
of Sentenced Persons (ETS No. 112) and the Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime or, more
recently, the Cybercrime Convention, which allow for signature,
before their entry into force, not only by the member States of the
Council of Europe, but also by non-member States which have
participated in their elaboration. Similarly, this paragraph
foresees the possibility for the European Community to sign the
Convention, thus following the trends in other draft conventions of
the Council of Europe, including the draft conventions on
laundering, search, seizure and confiscation of the proceeds from
crime and on the financing of terrorism (see Article 49) and on
action against trafficking in human beings (see Article 42).
248 In this connection, it should be noted that from the outset, the
Council of Europe wished to provide for the signature of the
Convention both by member States and by the non-member States that
have participated in its elaboration, that is, those States which
have Observer status with the Council of Europe, as these had been
included in the specific terms of reference given to the CODEXTER,
similar to those provided earlier on to the GMT in relation to the
updating of the European Convention on the Suppression of Terrorism
by its amending Protocol.
249 The provision is intended to enable the maximum number of
interested States, not just members of the Council of Europe, to
become Parties as soon as possible. Here, the provision is intended
to apply to five non-member States: the Holy See, Canada, Japan, the
United States of America and Mexico, which actively participated in
the elaboration of the Convention.
250 Once the Convention has entered into force, in accordance with
paragraph 3, other non-member States not covered by this provision
may be invited to accede to the Convention in conformity with
Article 24, paragraph 1.
251 Paragraph 3 sets the number of ratifications, acceptances or
approvals required for the Convention�s entry into force at six.
This figure reflects the belief that a slightly larger group of
Parties is needed to successfully begin addressing the challenge
posed by the offences set forth in the Convention. The number is not
so high, however, so as not to delay unnecessarily the Convention�s
entry into force. Among the six initial Signatories, at least four
must be members of the Council of Europe, but the two others could
belong to the non-member States that participated in the
Convention�s elaboration or the European Community. This provision
would of course also allow for the Convention to enter into force
based on expressions of consent to be bound by six Council of Europe
member States.
Article 24 � Accession to the Convention
252 This article regulates the accession by non-member States other
than those which have participated in the elaboration of the
Convention and are therefore covered by the provisions of Article
23, paragraph 1.
253 It has been drafted on precedents established in other Council
of Europe conventions, but with an additional express element. The
procedure is established in paragraph 1.
254 In accordance with long-standing practice, the Committee of
Ministers decides, on its own initiative or upon request, to invite
a non-member State, which has not participated in the elaboration of
a convention, to accede to that convention after having consulted
all the Parties, whether they are member States or not.
255 This implies that if any Party objects to the non-member State�s
accession, the Committee of Ministers would normally not invite it
to join the convention. However, under the usual formulation, the
Committee of Ministers could, at least in theory, invite such a
non-member State to accede to a convention even if a non-member
Party objected to its accession. This means that no right of veto is
usually granted to non-member Parties in the process of extending
Council of Europe treaties to other non-member States.
256 However, an express requirement that the Committee of Ministers
consult with and obtain the unanimous consent of all Parties � not
just member States of the Council of Europe � before inviting a
non-member State to accede to the Convention, has been inserted in
paragraph 1. This new practice was established with the Cybercrime
Convention which contains an identical provision (Article 37).
257 As indicated above, such a requirement is consistent with usual
practice and recognises that all Parties to the Convention should be
able to determine with which non-member States they are to enter
into treaty relations.
258 Nevertheless, the formal decision to invite a non-member State
to accede will be taken, in accordance with usual practice, by the
representatives of the States Parties entitled to sit on the
Committee of Ministers. This decision requires the two-thirds
majority provided for in Article 20.d of the Statute of the Council
of Europe and the unanimous vote of the representatives of the
States Parties entitled to sit on the Committee.
259 Paragraph 2 states the date of entry into force of the
Convention for the acceding State in a similar fashion to Article
23, paragraph 4.
Article 25 � Territorial application
260 It should be noted that during discussions within the GMT on a
similar provision in the Protocol amending the European Convention
on the Suppression of Terrorism, the proposal was put forward to
modify this territorial clause by replacing the words "shall apply"
by "shall or shall not apply". Ultimately, the GMT decided to retain
the original formula of the final clause in order to conform with
the long-standing practice of the Council of Europe aiming at
ensuring the uniform application of European treaties upon the
territory of each Party (the scope of the standard territorial
clause being limited to overseas territories and territories with a
special status).
261 It was stated that the wording of this provision would not,
however, constitute an obstacle for Parties claiming not to have
control over their entire national territory to make unilateral
statements declaring that they would not be able to ensure the
application of the treaty in a certain territory. Any such
declarations would not be considered as territorial declarations,
but statements of factual character, prompted by exceptional
circumstances making full compliance with a treaty temporarily
impossible.
Article 26 � Effects of the Convention
262 This article merits particular attention as it regulates the
effects of the Convention on other treaties, and on rights,
obligations and responsibilities assumed under international law. It
is based on similar provisions in existing treaties, namely the
Cybercrime Convention (Article 39) for paragraphs 1, 2 and,
notwithstanding certain specifications, 3, and the International
Convention for the Suppression of Terrorist Bombings (Article 19,
paragraph 2) for paragraph 4.
263 Paragraphs 1 and 2 address the Convention�s relationship with
other international agreements or arrangements. The subject of how
conventions of the Council of Europe should relate to one another or
to other, bilateral or multilateral, treaties concluded outside the
Council of Europe is not dealt with by the model clauses referred to
above.
264 The usual approach taken in Council of Europe conventions in the
criminal law area (for example, Agreement on Illicit Traffic by Sea
(ETS No. 156)) is to provide that: 1. new conventions do not affect
the rights and undertakings derived from existing international
multilateral conventions concerning special matters; 2. Parties to a
new convention may conclude bilateral or multilateral agreements
with one another on the matters dealt with by the convention for the
purposes of supplementing or strengthening its provisions or
facilitating the application of the principles embodied in it; and
3. if two or more Parties to the new convention have already
concluded an agreement or treaty in respect of a subject which is
dealt with in the convention or otherwise have established their
relations in respect of that subject, they shall be entitled to
apply that agreement or treaty or regulate those relations
accordingly, in lieu of the new convention, provided this
facilitates international co-operation.
265 Inasmuch as the Convention is generally intended to supplement
and not supplant multilateral and bilateral agreements and
arrangements between Parties, the drafters did not believe that a
possibly limiting reference to "special matters" was particularly
instructive and were concerned that it could lead to unnecessary
confusion. Instead, paragraph 1 simply indicates that the present
Convention supplements other applicable treaties or arrangements
between Parties and it mentions, in particular, a series of Council
of Europe conventions dealing with international co-operation and
terrorism.
266 Therefore, regarding general matters, such agreements or
arrangements should in principle be applied by the Parties to this
Convention. Regarding specific matters only dealt with by this
Convention, the rule of interpretation lex specialis derogat legi
generali provides that the Parties should give precedence to the
rules contained in the Convention and, where such specificity
exists, this Convention, as lex specialis, should provide a rule of
first resort over provisions in more general mutual assistance
agreements.
267 Similarly, the drafters considered language making the
application of existing or future agreements contingent on whether
they "strengthen" or "facilitate" co-operation as possibly
problematic, because, under the approach established in the
provisions on international co-operation, the presumption is that
Parties will apply relevant international agreements and
arrangements.
268 For example, where there is an existing mutual assistance treaty
or arrangement as a basis for co-operation, the present Convention
would only supplement, where necessary, the existing rules.
269 Consistent with the Convention�s supplementary nature in this
respect and, in particular, its approach to international
co-operation, paragraph 2 provides that Parties are also free to
apply agreements that are already in force or that may come into
force in the future. The precedent for such an articulation is found
in the Convention on the Transfer of Sentenced Persons.
270 Certainly it is expected that the application of other
international agreements (many of which offer proven, longstanding
formulas for international assistance) will in fact promote
international co-operation. Consistent with the terms of the present
Convention, Parties may also agree to apply such other agreements in
lieu. As the present Convention generally provides for minimum
obligations, paragraph 2 recognises that Parties are free to assume
obligations that are more specific in addition to those already set
out in the Convention, when establishing their relations concerning
matters dealt with therein. However, this is not an absolute right:
Parties must respect the objective and purpose of the Convention.
271 Furthermore, in determining the Convention�s relationship with
other international agreements, the relevant provisions in the
Vienna Convention on the Law of Treaties apply.
272 Paragraph 3 relates to the mutual relations between the Parties
to the Convention which are members of the European Union. In
relation to this paragraph, upon the adoption of the Convention, the
European Community and the member States of the European Union, made
the following declaration:
"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-�-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-�-vis non-European Union
Parties."
As an instrument made in connection with the conclusion of a treaty,
within the meaning of Article 31, para. 2(b) of the Vienna
Convention on the Law of Treaties, this declaration forms part of
the "context" of the Convention.
273 The European Community would be in a position to provide, for
the sole purpose of transparency, necessary information about the
division of competence between the Community and its Member States
in the area covered by the present Convention, inasmuch as this does
not lead to additional obligations placed on the Community.
274 While the Convention provides a level of harmonisation, it does
not purport to address all outstanding issues relating to fight
against terrorism, even from a preventive perspective. Therefore,
paragraph 4 was inserted to make plain that the Convention only
affects what it addresses. Other rights, restrictions, obligations
and responsibilities that may exist but that are not dealt with by
the Convention are left unaffected. Precedent for such a "savings
clause" may be found in other international agreements, such as the
International Convention for the Suppression of the Financing of
Terrorism.
275 In this connection, this paragraph mentions in particular
international humanitarian law given the specific nature of the
subject of the Convention.
276 The wording of paragraph 4 is based on similar provisions in
recent international texts, including the Inter-American Convention
against Terrorism (Article 15, paragraph 2) and United Nations
Security Council Resolution 1566 (2004) which contains similar
language (preambular paragraph 6).
277 It should be noted that obligations under international refugee
law include the responsibility to ensure that the institution of
asylum is not abused by persons who are responsible for terrorist
acts.
278 Refugee status may only be granted to those who fulfil the
criteria as set out in Article 1.A.2. of the 1951 Convention
relating to the Status of Refugees, that is "a well-founded fear of
being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion". In
many cases, persons responsible for terrorist acts may not fear
persecution for a motive provided for in the 1951 Convention but
rather may be fleeing legitimate prosecution for criminal acts they
have committed.
279 According to Article 1.F. of the 1951 Convention, persons who
would otherwise meet the refugee criteria of Article 1.A.2. shall be
excluded from international refugee protection if there are serious
reasons for considering that they have committed a crime against
peace, a war crime, a crime against humanity, or a serious
non-political crime outside the country of refuge prior to admission
to that country as a refugee, or have been guilty of acts contrary
to the purposes and principles of the United Nations.
280 While indications of an applicant�s involvement in acts
prohibited under the present Convention would make it necessary to
examine the applicability of Article 1.F. of the 1951 Convention,
international refugee law requires an assessment of the context and
circumstances of the individual case in a fair and efficient
procedure before a decision is taken.
281 Paragraph 5 of Article 26, which is based on Article 19,
paragraph 2 of the International Convention for the Suppression of
Terrorist Bombings, is an additional saving clause which provides
for the application of international humanitarian law and not the
present Convention in relation to activities of armed forces during
an armed conflict. As for activities undertaken by military forces
of a Party in the exercise of their official duties, reference is
made to paragraph 82 above, which states that the Convention leaves
unaffected conduct in pursuance of lawful instructions or government
authority.
282 Paragraph 5 does not legitimise the behaviour covered by
Articles 5 to 7 of this Convention when carried out by armed forces
during an armed conflict or by military forces of a Party in the
exercise of their official duties, and is thus consistent with other
international treaties against terrorism such as the International
Convention for the Suppression of Terrorist Bombings which states in
its preamble that "Noting that the activities of military forces of
States are governed by rules of international law outside the
framework of this Convention and that the exclusion of certain
actions from the coverage of this Convention does not condone or
make lawful otherwise unlawful acts, or preclude prosecution under
other laws."
Articles 27 and 28 � Amendment procedures
283 Amendments of the Convention are regulated by Articles 27 and 28
which are based on a similar provision in the Protocol amending the
European Convention on the Suppression of Terrorism which the GMT
provided in order to solve the problem of possible future amendments
to the convention. Two procedures are provided for: a general
procedure for amendments concerning the Convention other than those
concerning the Appendix and a simplified procedure for the revision
of the Appendix allowing for new conventions to be added to this
list. In this connection, it should be recalled that the Appendix
contains the same list of treaties as Article 1, paragraph 1 of the
European Convention on the Suppression of Terrorism as revised by
its amending Protocol.
Article 27 � Amendments to the Convention
284 This provision concerns amendments to the Convention other than
those relating to the Appendix. It aims to simplify the amendment
procedure by replacing the negotiation of a protocol with an
accelerated procedure.
285 Paragraph 1 provides that amendments may be proposed by any
Party, the Committee of Ministers or the Consultation of the Parties
provided for in Article 30, in accordance with standard Council of
Europe treaty-making procedures.
286 This procedure provides therefore for a form of consultation
that the Committee of Ministers should carry out before proceeding
to the formal adoption of any amendment. This is the mandatory
consultation of the Parties to the Convention including non-member
Parties. This consultation is justified in so far as non-member
Parties are concerned because they do not sit in the Committee of
Ministers and therefore it is necessary to provide them with some
form of participation in the adoption procedure. This procedure
takes place in the framework of the Consultation of the Parties
which gives an opinion in pursuance of Article 30.
287 The Committee of Ministers may then adopt the proposed
amendment. Although it is not explicitly mentioned, it is understood
that the Committee of Ministers would adopt the amendment in
accordance with the majority provided for in Article 20.d of the
Statute of the Council of Europe, that is a two-thirds majority of
the representatives casting a vote and of a majority of the
representatives entitled to sit on the Committee (paragraph 4).
288 The amendment would then be submitted to the Parties for
acceptance (paragraph 5).
289 Once accepted by all the Parties, the amendment enters into
force on the thirtieth day following notification of acceptance by
the last Party (paragraph 6).
290 In accordance with standard Council of Europe practice and in
keeping with the role of the Secretary General as depositary of
Council of Europe conventions, the Secretary General receives
proposed amendments (paragraph 1), communicates them to the Parties
for information (paragraph 2) and for acceptance once adopted by the
Committee of Ministers (paragraph 5) and receives notification of
acceptance by the Parties and notifies them of the entry into force
of the amendments (paragraph 6).
Article 28 � Revision of the Appendix
291 Article 28 introduces a new simplified amendment procedure for
updating the list of treaties in the Appendix to the Convention.
292 This procedure represents a development in Council of Europe
conventions inaugurated by the Protocol amending the European
Convention on the Suppression of Terrorism (Article 13) which was
inspired by existing anti-terrorist conventions, such as the
International Convention for the Suppression of the Financing of
Terrorism of 9 December 1999 (Article 23). The novelty lies in the
fact that this simplified procedure concerns an appendix which is
not of a purely technical nature, as it was the case, for instance,
with the appendices to the Bern Convention on the Conservation of
European Wildlife and Natural Habitats (ETS No. 104) or to the
Protocol of Amendment to the European Convention for the Protection
of Vertebrate Animals used for Experimental and other Scientific
Purposes (ETS No. 170).
293 Paragraph 1 provides for a number of substantive conditions that
have to be met in order to have recourse to this procedure. Firstly,
the amendment can only concern the list of treaties in Article 1,
paragraph 1. Secondly, such amendments can only concern treaties
concluded within the United Nations System � these terms cover the
United Nations Organisation and its Specialised Agencies, dealing
specifically with international terrorism and having entered into
force.
294 In line with Article 27, amendments may be proposed by any Party
or by the Committee of Ministers and are communicated by the
Secretary General of the Council of Europe to the Parties (paragraph
1). However, contrary to Article 27, the Consultation of the Parties
is not entitled to make such proposals for amendments.
295 The forms of consultation and adoption by the Committee of
Ministers of a proposed amendment provided for in the general
amendment procedure of Article 27 are provided in Article 28 also,
for the simplified procedure in paragraph 2.
296 However, contrary to the general procedure under Article 27, in
the simplified procedure an amendment, once adopted by the Committee
of Ministers, enters into force after the expiry of a period of one
year from the date on which it was communicated to the Parties by
the Secretary General (paragraph 2), provided that one third or more
of the Parties do not notify an objection to the entry into force of
the amendment to the Secretary General (paragraph 3), in which case
the amendment would not enter into force.
297 Any objection from a Party shall be without prejudice to the
other Parties� tacit acceptance and where less than one-third of the
Parties object to the entry into force of the amendment, the
proposed amendment enters into force for those Parties which have
not objected (paragraph 4).
298 Acceptance by all the Parties is therefore not required for the
entry into force of the amendment.
299 For those Parties which have objected, the amendment comes into
force on the first day of the month following the date on which they
have notified the Secretary General of the Council of Europe of
their subsequent acceptance (paragraph 5).
Article 29 � Settlement of disputes
300 Article 29 concerns the settlement, by means of negotiation,
arbitration or other peaceful means, of those disputes over the
interpretation or application of the Convention. The current
provision is similar to the one found in the Cybercrime Convention
(Article 45, paragraph 2).
301 It provides, inter alia, for the setting up of an arbitration
tribunal along the lines of Article 47, paragraph 2 of the European
Convention for the Protection of Animals during International
Transport of 13 December 1968 where this system of arbitration was
for the first time introduced. Alternatively, the Parties may also
agree to submit their dispute to the International Court of Justice.
Whatever procedure is chosen to settle the dispute, it should be
agreed upon by the Parties.
302 Further guidance is provided by the European Convention on the
Peaceful Settlement of Disputes (ETS No. 23, Article 1).
Article 30 � Consultation of the Parties
303 This article provides for the setting up of a conventional
committee, the Consultation of the Parties responsible for a number
of conventional follow-up tasks and providing for the participation
of all Parties.
304 Such a procedure was believed necessary by the drafters of the
Convention to ensure that all Parties to the Convention, including
Parties non-member of the Council of Europe, could be involved � on
an equal footing � in any follow-up mechanism.
305 When drafting this provision, the negotiators wanted to devise
as simple and flexible a mechanism as possible, pending the entry
into force of the Protocol amending the European Convention on the
Suppression of Terrorism which itself provides for another specific
follow-up committee, the COSTER (Conference of States Parties
against Terrorism).
306 Beyond its purely conventional functions in relation to the
revised European Convention on the Suppression of Terrorism, the
COSTER has a broader role in the Council of Europe�s anti-terrorist
legal activities. It is called upon to act as a forum for exchanges
of information on legal and policy developments and, at the request
of the Committee of Ministers, to examine additional legal measures
with regard to terrorism adopted within the Council of Europe and
could well discharge the role of the Consultation of the Parties
with its membership restricted to representatives of the Parties to
the present Convention.
307 The flexibility of the follow-up mechanism established by the
present Convention is reflected by the fact that there is no
temporal requirement for its convocation. It will be convened by the
Secretary General of the Council of Europe (paragraph 2) as
appropriate and periodically (paragraph 1).
308 However, it can only be convened at the request of the majority
of the Parties or at the request of the Committee of Ministers
(paragraph 1).
309 With respect to this Convention, the Consultation of the Parties
has the traditional follow-up competencies and plays a role in
respect of :
a the effective implementation of the Convention, by making
proposals to facilitate or improve the effective use and
implementation of this Convention, including the identification of
any problems thereof, as well as the effects of any declaration made
under this Convention;
b the amendment of the Convention, by making proposals for amendment
in accordance with Article 27, paragraph 1 and formulating its
opinion on any proposal for amendment of this Convention which is
referred to it in accordance with Article 27, paragraph 3;
c a general advisory role in respect of the Convention by expressing
an opinion on any question concerning the application of this
Convention;
d serving as a clearing house and facilitating the exchange of
information on significant legal, policy or technological
developments in relation to the application of the provisions of the
Convention.
Article 31 � Denunciation
310 This provision aims at allowing any Party to denounce this
Convention. The sole requirement is that the denunciation be
notified to the Secretary General of the Council in his or her role
as depository of the Convention.
311 This denunciation takes effect three months after it has been
received, that is, as from the reception of the notification by the
Secretary General.
Article 32 � Notification
312 This provision, which is a standard final clause in Council of
Europe treaties, concerns notifications to Parties. It goes without
saying that the Secretary General must inform Parties also of any
other acts, notifications and communications within the meaning of
Article 77 of the Vienna Convention on the Law of Treaties relating
to the Convention and not expressly provided for by this article.
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Note
(1) In the European Union context, this definition was subsequently
agreed upon for the purpose of the approximation of the legislation
of the European Union member states in the Framework Decision of the
Council of 13 June 2002 (2002/475/JAI, JO L 164 of 13.6.2002, p. 3).
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