10th International Judicial Conference in Strasbourg from 23 to 24 May 

Opening speech by the Secretary General of the Council of Europe, Mr Walter Schwimmer

(Strasbourg, 23-24 May 2002)

President,
Justices,
Ladies and Gentlemen,

More people died in terrorist attacks last year than in any other year in history, according to a report by the United States Government.

The report comes just as Americans and Europeans are receiving new warnings that further civilian attacks are likely.

What would be the future of our societies if they failed to provide security to their members? And what would be their fate if they traded liberty for that security?

Obviously, we cannot allow either of these prospects to materialise.

Terrorism is an assault on human rights, democracy, and the rule of law. It must be defeated with utmost vigour, but not at any cost, certainly not at the cost of those values. We must not destroy or even undermine democracy on the grounds of defending it, as the European Court of Human Rights warned us in a 1978 judgment delivered in the context of the Baader-Meinhof terrorism in Germany.

So, we are bound to follow a “win-win” approach: reducing the threat of terrorism through very firm preventive and punitive action, AND safeguarding to the greatest extent possible freedoms and their supporting principles and procedures.

In the long chain of institutions and actors involved in this challenge, courts and judges, from international to first instance national level, have a key role to play. This is particularly true for Supreme and Constitutional Courts. Ultimately, it is for the courts to ensure that the balance be struck between the obligation to provide protection against terrorist acts and the obligation to safeguard human rights.

I therefore welcome this International Judicial Conference and congratulate the Furst Family Foundation, the Centre for Democracy and its Director, Allen Weinstein, for their initiative.

The Council of Europe is of course contributing to the international action launched or rather expanded after 11 September, under the aegis of the United Nations. It does so in partnership with other international institutions and with its oberver States.

Mainly through its Parliamentary Assembly, it first helps build the democratic support of political forces and public opinion for what is bound to be a difficult, long-term, costly and sometimes dangerous fight.

Secondly, it is enhancing the effectiveness of a whole range of its treaties which facilitate international co-operation against terrorism, organised crime and their funding. One of the priorities here is to remove obstacles to such cooperation, notably by updating the list of those offences which could no longer be regarded as political offences. The Multidisciplinary Group set up in the aftermath of the New York and Washington attacks for that very purpose is also looking into ways of strengthening investigative action and protecting witnesses, into sentencing and into high-security measures applicable to convicted terrorists.
So, the Council of Europe is actively involved in the tough side of the matter.

Thirdly, it is also addressing some of the more “distant” causes of the various expressions of terrorism. We call this “investing in democracy”. Let me give you two examples:

This Organisation is paying increased attention to unresolved conflicts that are feeding or likely to feed terrorism in Europe and neighbouring countries. It contributes to the search for political settlement, the development of institutional solutions, the restoration of the rule of law, human rights protection and the creation of a climate of trust.

It is also launching or supporting multicultural and inter-religious dialogue initiatives, not because we would be confronted with a clash of civilisations, but in recognition of the need for better mutual understanding both within our increasingly diverse societies and in the wider framework of trans-Mediterranean relationships.

But the Council of Europe’s most important contribution is probably the assistance given to its members in combining intelligence initiatives, firm police, judicial and (wherever necessary) military action AND respect for our fundamental values.

It is certainly the aspect of our work which is most relevant to your deliberations.

Pursuant to a decision by the Committee of Ministers, a set of guidelines on human rights and the fight against terrorism has been prepared and is almost ready. It was drafted after consultations with anti-terrorism experts on the one hand and human rights NGOs on the other.

To be finalised next month, the guidelines will remind states of their duty to protect their population against acts committed in defiance of human rights. This action may lead them to take specific measures, possibly derogatory measures, provided that they are reasonable and proportionate and that they strike a balance between the obligation to provide protection against terrorist acts and the obligation to safeguard human rights.

The guidelines will be based on international texts, including the UN Covenants, and on the case law of the European Convention on Human Rights, as interpreted by the European Court of Human Rights.

They will specify the restraints which member states and, more generally, all governments concerned about respect for human rights and the rule of law will impose on themselves, in any circumstances, in their fight against terrorism.

Again, courts are expected to play a decisive role in the control of such restrictions, which notably include:

A prohibition of arbitrary action,
Full respect for the right to life,
An absolute prohibition of torture and inhuman or degrading treatment,
A prohibition of retroactive effect for legislation,
The right to a fair trial,
The refusal of the extradition of an individual to a country where he or she might be condemned to death.

You may remember in this respect that Europe is now a de facto death penalty free area in times of peace, almost all countries having ratified Protocol N° 6 to the ECHR, the others having imposed a moratorium on executions. A new Protocol to the ECHR outlawing the death penalty in times of war was recently opened to signature and was immediately signed by 34 of our 44 members. The death penalty is certainly a complicating factor in the transatlantic co-operation against terrorism, but solutions respecting European concerns are certainly not out of reach.

This is a brief account of our action.

I hope it will be a source of inspiration for your work.