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

“The judicial response to terrorism and international organisations: the Council of Europe’s work”

    Speech by Mr Guy DE VEL
    Director General of Legal Affairs at the Council of Europe

    (original text in French)

    Ladies and Gentlemen,
    Following the terrorist attacks against the United States on 11 September 2001, which were unprecedented in their violence, it was clear that the Council of Europe had to respond in a way that was both immediate and resolute.

    It is true that these events force the international community as a whole to examine the need to protect its citizens and develop concerted action in the face of a complex phenomenon with numerous international ramifications. In the intervening months, the conviction has grown that the threat posed both by hyper-terrorism of the “al-Qaeda” type and by other forms of terrorism is greater than ever, and requires rigorous long-term action – recent events in Pakistan, directed against the French community, are tragic proof of this.

    Through its pan-European geographical composition (44 member States), the Council of Europe offers an appropriate framework for co-operation in the fight against terrorism.

    Accordingly, the Committee of Ministers, the Council of Europe Parliamentary Assembly and the European Ministers of Justice very rapidly gave firm and unconditional political engagements directing the Council of Europe to act and inject its “added-value” on three levels:

      1. strengthening judicial action against terrorism and its financial foundations

      2. safeguarding fundamental values

      3. in a longer-term perspective, working on the causes of terrorism and helping to eradicate its roots by fighting discrimination, intolerance and extremism, and by promoting inter-cultural and inter-faith dialogue.

    These three approaches are based on the same conviction: our best weapon lies in energetically defending, disseminating and developing the fundamental values of democracy. Europe has a rich legal heritage in protecting the values we believe to be essential, one that enables us to reconcile respect for human rights and effectiveness in fighting terrorism, rather than setting these concepts against each other. Certainly, the Council of Europe’s distinctive role makes it well placed to do this.

    My speech today, at this conference on « judicial responses » to terrorism, will primarily focus on how to strengthen firm and determined action against terrorism and its financial bases whilst having regard to the preservation of fundamental rights and individual freedoms, both of which are inextricably linked.

    The Council of Europe is known for its 50 years of experience in promoting and defending human rights, but also for its 50 years of experience in fighting crime. Some important landmarks are: the Conventions on Extradition (1957); on mutual assistance in criminal matters (1959); on money-laundering (1990); and on cyber-crime (2001).

    The first and only European Convention against Terrorism was adopted in 1977 following an extraordinary meeting of European Justice Ministers, against the background of the actions being carried out by the Bande Bader or the Red Brigades. At the time, this Convention marked a significant breakthrough. It has now been signed by all the member States and ratified by 38 of them. Nonetheless, 25 years later and in the light of the recent events, it requires up-dating or even revision. I will come back to this point.

    The European Ministers of Justice, meeting in Moscow on 4-5 October 2001 (about 35 Ministers were present), set out a full-blown programme to fight terrorism in the legal field. At its ministerial- level Session in November 2001, the Committee of Ministers adopted this action plan and set up two Committees, which work in parallel:

      · a Multidisciplinary Group on international action against terrorism (GMT), made up of specialists in the fight against terrorism,

      · a Group of specialists on Human Rights and the fight against terrorism (DH-S-TER), with responsibility for drawing up guidelines indicating the principles to be applied by the member States and by all States wishing to respect human rights and the pre-eminence of law in fighting terrorism.

    These two Groups are working in close co-operation. An effective fight against terrorism can only develop and be strengthened in the framework of law and of judicial procedures. The measures taken by States to fight terrorism must respect fundamental rights and the pre-eminence of law, exclude any arbitrariness, including any discriminatory or racist treatment, and be subject to appropriate judicial review. In addition, any legal text related to the fight against terrorism must set out, as specifically as possible, the possible restrictions that it imposes on fundamental rights. Failing this, any action against terrorism would lose its credibility and effectiveness.
    The GMT’s work is being conducted on the basis of the Council of Europe’s areas of competence and bearing in mind the work of other institutions, particularly the European Union and the United Nations:

      · By the end of 2001, the European Union had achieved remarkable results, such as a joint definition of terrorism or the European arrest warrant.

      · The United Nations, which has drawn up Conventions, particularly on the suppression of terrorist attacks using explosives and on the suppression of financing of terrorism, has begun work with a view to drawing up a draft general Convention on international terrorism; on account of sensitive political problems, this work is progressing slowly.

    The GMT was entrusted with two main tasks:

    · first, up-dating of the 1977 Convention for the suppression of terrorism, which I referred to a moment ago; 
    · second, making proposals for the Council of Europe’s future action and preparing an interim report for the Committee of Ministers – a report that was presented less than three weeks ago in Vilnius, Lithuania, at the Committee of Ministers’ Ministerial Session, much of which was devoted to the issue of terrorism.

1. Up-dating of the Convention for the Suppression of Terrorism

    The GMT has moved ahead quickly in this area and should finalise a draft Protocol to the Convention by next November. What will this Protocol cover?

    To explain, it is first of all appropriate to recall the content of the Convention itself: the 1977 Convention is in certain senses a counterpart to our 1957 Convention on Extradition (still the only one applied in Europe), aimed at facilitating the extradition of persons who have committed acts of terrorism and listing the offences which the contracting parties undertake not to consider as political offences which could give rise to a refusal to extradite. These concern particularly serious actions such as: hijacking of aircraft, abduction and hostage-taking, use of bombs, grenades, shotguns and booby-trapped letters and parcels, if such use endangers persons. In addition, the Convention empowers the contracting Parties not to consider as a political offence any act of violence against persons’ lives, physical integrity or freedom. It is expressly stated that nothing in the Convention should be interpreted as imposing an obligation to extradite if a State has grounds for believing that this could lead to a person being prosecuted or punished on account of his or her race, religion, nationality or political opinions.

    A large consensus emerged to the effect that this treaty should be brought up-to-date, possibly with a view to opening to States that are not members of the Council of Europe (Observer States – members of the OSCE). In particular, the GMT’s work is focusing on offences which should no longer be considered as political offences, but it is also examining questions such as the possibility of refusing to extradite an individual who is likely to be subject to the death penalty, torture or inhuman or degrading treatment.

    In addition, we believe – and this was confirmed by several ministers at the Committee of Ministers’ ministerial meeting in Vilnius on 3 and 4 May 2002 (and in St Petersburg at the end of April, at the close of the Council of Europe Inter-parliamentary Forum, organised by the Council of Europe Parliamentary Assembly and the CIS Assembly, with the co-operation of the OSCE and the European Parliament) –  that the Convention’s effectiveness and co-operation in this field would be strengthened by the introduction of a specific system for monitoring the Council of Europe’s legal action.

2. The GMT has drawn up a number of proposals aimed at increasing the efficacy of the fight against terrorism, including judicial measures.

    These proposals all concern the stages of judicial procedure.
    Firstly, the question of special investigation techniques. Due to their complex and secret nature, and the technical aspects of this particular field, investigations into terrorist activities frequently give rise to considerable difficulties, as we are all unfortunately aware. These are accentuated by the frequent links between terrorism and other forms of crime, such as money-laundering, drug trafficking, arms trafficking and organised crime, and by the sensitive distinction between legal and illegal economic activities, some of which are used to finance terrorism. The frequently complex nature of large-scale terrorist actions has shown that these questions can only be approached effectively and rapidly by using specific working methods such as infiltration of agents, electronic surveillance, a multi-disciplinary approach and co-operation between the various services concerned. However, it is essential to seek to maintain strict respect for human rights. However, the Council of Europe has already given thought to special investigation techniques, particularly in the Conventions on money-laundering and corruption, and in a Recommendation to member States on the fight against organised crime.

    Secondly, the protection of witnesses and pentiti. This is an essential component of the fight against terrorism. Indeed, witnesses are increasingly likely to be pressured. Consequently, the criminal justice system could find it impossible to bring to justice the perpetrators of offences and to reach judgment because witnesses will have been dissuaded from giving evidence freely by stating the whole truth. Our work could be based on the case-law of the European Court of Human Rights, particularly as regards anonymous evidence (judgment in Kostovski v. the Netherlands) and on the Committee of Ministers’ 1997 Recommendation to member States on the intimidation of witnesses and the rights of the defence.

    Thirdly, the question of the enforcement of sentences and high-security detention centres. An effective fight against terrorism presupposes the imposition of proportionate and effective sentences that are intended to dissuade other potential terrorists from committing similar crimes. However, it is important not to forget that judicial decisions must always be based on the particular circumstances and personal situation of the person who perpetrated the offences. Equally, any disproportion between the gravity of the offence and the sentence imposed must be avoided.

    Fourthly, the fight against terrorism continues even after a person has been convicted for committing a terrorist act. In the first place, it is important that States equip themselves with suitable detention centres. Furthermore, it is necessary to take account of the fact that terrorists may remain dangerous, even in prison. It is therefore essential to ensure public safety and internal security inside prison establishments. At the same time, everything should be done – clearly, with constant respect for human rights – to ensure appropriate treatment for these prisoners, especially by envisaging regular re-examination of their situation. Once again, we have a basis for our future work: in 1982, the Committee of Ministers adopted a Recommendation on the detention and treatment of dangerous prisoners.

    Fifthly, it is appropriate to emphasise that any effective fight against terrorism requires intensive international co-operation at all levels and, in particular, between police forces and the judicial authorities, especially public prosecution services.

    Sixth: the complexity of terrorist cases requires suitable training for judges and prosecutors, as well as increasingly targeted specialisation for the second group. Accordingly, it would also be very useful to set up specialised prosecution units. (The Council of Europe’s experience in the training of judges and prosecutors).

    Seventh - and how could we overlook this point only a few days after the event in Pakistan to which I alluded a few moments ago - we cannot and we must not forget the victims of these violent acts. Assistance for victims must be a constant concern in criminal policy. This assistance includes measures aimed at easing psychological trauma as well as granting rapid compensation for physical and material harm experienced by the unfortunate victims or their dependents (Council of Europe Convention on the Compensation of Victims of Violent Crimes).

    Eighth: in enhancing our action against the financing of terrorism, a complement to the work being done within the FATF (Financial Action Taskforce), the Council of Europe has a good standard-setting basis: its 1990 Convention on money-laundering, ratified by 38 States, and its Select Committee of Experts on the Evaluation of Anti-Money-Laundering Measures: the Committee of Ministers recently extended this committee’s terms of reference so that it can also deal with questions related to the financing of terrorism. This Committee acts in a very tangible way, through mutual evaluation by its member States of measures adopted against money-laundering, and now also in terms of financing of terrorism.

    Finally, in the standard-setting field, our very recent Convention on Cyber-Crime, opened for signature in November 2001, provides a tool for practical co-operation in responding collectively to the use of computer networks for criminal purposes, including terrorism  (signed by 33 States, including 4 non-members).

    ***

    The Council of Europe’s action is dominated by the political conviction that strong democracies, respectful of their fundamental values, are best placed to respond effectively to terrorism and to tackle certain of its causes. This action aims to achieve results in the short-term, by mobilising the Organisation’s know-how and experience to strengthen rapidly the effectiveness of legal co-operation against this form of crime. Simultaneously, it is providing guidance to States, so that the essential fight against terrorism does not turn against democracy and human rights. Finally, it is making full use of more long-term intervention measures to reduce the divisions, tensions and prejudices which represent some of the causes of this blight. The first results have already appeared. They were noted and strongly encouraged by the Committee of Ministers in Vilnius, and confirm our ability to bring important “added-value” to this international campaign.

    The response to terrorism can only be legal and judicial. Otherwise, it will not be civilised, credible, effective and worthy of democratic States founded on the rule of law. The best response to violence is not violence, but firm application of the law by an independent and impartial court: this is the judicial response to terrorism.
    Thank you for your attention.