In its Progress report on the action which the Council of Europe could usefully carry out in the field of the fight against terrorism which the GMT adopted at its 3rd meeting, which took place in Strasbourg, on 10-11 April 2002, the GMT referred to the protection of witnesses and “pentiti”.
The topic was described as follows:
The protection of witnesses and pentiti is an essential part of the fight against terrorism. Indeed, there is an increasing risk that witnesses are subjected to intimidation and, as a result, the criminal justice system might fail to bring offenders to trial and obtain a judgment because witnesses are effectively discouraged from testifying freely and truthfully.
The European Court of Human Rights has delivered several judgments, in particular, on the issue of anonymous witnesses (see, for instance, the Kostovski case).
At the same time, there is growing recognition of the special role of witnesses and, particularly, of pentiti, in criminal proceedings and that their evidence is often crucial to securing the conviction of offenders. It is therefore of the utmost importance for States to protect witnesses against such interference by providing them with specific measures of protection that effectively ensure their safety. In doing so, States should be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles appended to Recommendation R(97)13 concerning the intimidation of witnesses and the rights of the defence. It should be borne in mind that this Recommendation concerns (i) the protection of pentiti and (ii) the balance between the right of the defence and the protection of witnesses. It is clear that the 1997 Recommendation does not contain a comprehensive (procedural and non procedural) set of measures to protect witnesses in terrorist cases. It has indeed a very specific scope and does not cover, for instance, the question of those persons who are supporting terrorist activities without participating in the commission of criminal offences, and who might decide to collaborate with the criminal justice system. In addition, it is often difficult, in particular in small countries, properly and effectively to protect witnesses and pentiti. There is therefore a need to strengthen international co-operation in this field.
In this context, it should also be recalled that Article 221 of the Criminal Law Convention on Corruption (ETS 173) and Article 232 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS 182) deal with the question of the protection of collaborators of justice and witnesses.
The GMT proposed the following action :
The GMT recommended to the Committee of Ministers that it be given the task to examine, in co-operation with the European Committee on Crime Problems (CDPC), the possibility of developing guidelines and, if necessary, a convention to strengthen the protection of witnesses and of pentiti, including through an improved international co-operation in this area, taking due account of Recommendation R(97)13. It could also be considered to develop a comprehensive scheme for protecting witnesses and pentiti, which apply to organised crime and other related criminal activities as well.
Final report of activities of the GMT regarding the proposals for follow-up to the 110th session of the Committee of Ministers (Vilnius, 3 May 2002)
On the basis of the terms of reference it received by the Committee of Ministers at its 109th Session in November 2001, the Multidisciplinary Group on international action against terrorism (GMT) finalised, for the attention of the Committee of Ministers at its 110th Session (Vilnius, 3 May 2002), a Progress Report on the action which the Council of Europe could usefully carry out in the field of the fight against terrorism (CM(2002)57). This Progress Report contains (i) a report on the “state of affairs” of the discussions on the update of the 1977 Convention on the Suppression of terrorism, (ii) an indication of the need to provide for a simple, flexible and specific follow-up mechanism in the field of terrorism in order to enhance the efficiency of Council of Europe’s action in this area and (iii) proposals for legal and policy actions to be undertaken, if so decided by the Committee of Ministers, by the Council of Europe in this field.
In the Final Communiqué of the 110th session, the Ministers:
- “took note with satisfaction of the first report of the Multidisciplinary Group on international action against Terrorism (GMT) set up last November;
- expressed their political will that efforts be sustained in the areas identified by the GMT, including the strengthening of international cooperation, through the updating of the 1977 European Convention on the suppression of terrorism;
- reaffirmed their support for the Organisation's efforts to combat terrorism, in particular through examining the possibility of setting up a specific follow-up mechanism to the Council of Europe's action in this field;
- accordingly, instructed the GMT to prepare a draft protocol to the European Convention on the suppression of terrorism, and noted that a new report will be submitted to them for their next session.”
The Deputies, at their 795th meeting on 14-15 May 2002, on the basis of the Communiqué of the 110th Session, of the “Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe” and of the Conclusions of the Chair, and in the light of the interventions made by the Ministers on 3 May 2002, inter alia, “instructed the Secretariat and the relevant experts’ committees (in particular the GMT and the CDDH), as well as their Working Group GT-Dialogue, to continue their work in the field of the contribution of the Council of Europe to the international action against terrorism and to report back when appropriate”.
Following these decisions, the Ministers’ Deputies, at their 796th meeting, when considering the Abridged Report of the 3rd meeting of the GMT, held an exchange of views on the future of the GMT and raised a number of questions, incorporated into a letter dated 28 May 2002 by the Chairman of the Ministers’ Deputies to the Chair of the GMT.
The letter addresses the following main 5 questions, which will be dealt with in the second part of this document:
(a) indicate the order of priorities of the future actions by the GMT,
(b) explain how the GMT intends to develop its proposals,
(c) make proposals on which body has to implement and develop the actions proposed,
(d) establish a time-table to implement the proposals for actions,
(e) make proposals on the follow up of the implementation of the GMT proposals.
The Final Report of the GMT took as a basis the Progress Report on the action which could usefully be carried out by the Council of Europe in the field of the fight against terrorism, which was presented at the 110th Session of the Committee of Ministers in Vilnius on 3 May 2002 (see document CM(2002)57).
Since the Progress Report dealt already with the content of the various proposals, the Final Report addressed only the questions put forward by the Deputies.
The GMT insisted on the importance of a multidisciplinary approach in the field of the fight against terrorism by the setting up of the PC-PW.
The GMT proposed that the aim of the activity on the protection of witnesses and of pentiti in relation to acts of terrorism should be the development of guidelines and, if necessary, a convention to strengthen the protection of witnesses and of pentiti in cases of terrorism, including through an improved international co-operation in this area, taking due account of Recommendation No. R(97)13. It could also be considered to develop a comprehensive scheme for protecting witnesses and pentiti, which apply to organised crime and other related criminal activities as well.
This question being relevant to all crimes could be dealt with by the European Committee on crime problems (CDPC), in co-operation with the CDDH and the CDCJ and the first part of its implementation should be completed by the end of 2003.
This Final report was submitted at the 111th Ministerial Session of the Committee of Ministers.
The Final communiqué of this session referred inter alia to the International action against terrorism and stated:
Recent events, including the hostage taking in Moscow, confirmed the magnitude of the threat and the necessity for increased co-operation between Council of Europe member states in the fight against terrorism which has to remain a top political priority.
On the basis of a report by the Secretary General (SG/Inf(2002)43), the Ministers assessed progress on each of the three cornerstones they had defined a year before for the Council of Europe contribution to a UN-led international action against terrorism: intensifying legal cooperation to combat terrorism, safeguarding fundamental values, investing in democracy.
The Ministers expressed their appreciation of the work accomplished by the Multidisciplinary Group on Terrorism (GMT). They were pleased to note that, following the instruction they had given at their Vilnius session (May 2002), work to update the European Convention on Suppression of Terrorism had been completed. They approved the content of the Draft Protocol amending the Convention (document CM(2002)149 revised) and instructed their Deputies to proceed to the adoption of that instrument, in the light of an opinion by the Parliamentary Assembly, as soon as possible in 2003. The Ministers also noted with satisfaction the priority areas for Council of Europe action identified by the GMT and instructed their Deputies to give the necessary follow-up.
The Ministers stressed the importance of the "Guidelines on human rights and the fight against terrorism" adopted on 11 July 2002, which were the first legal international document of this type designed to help States in finding the right balance between the requirements of efficiently protecting society and the preservation of fundamental rights and freedoms.
The Ministers confirmed their strong belief that intercultural and inter-religious dialogue, a welcome process in itself, could indeed contribute both to reducing certain causes of terrorism and the support from which it may benefit. They gave their full support to the new projects launched by the Council of Europe designed to promote such dialogue. Ministers valued efforts made by the North-South Centre to enlarge the scope of this dialogue in the Mediterranean. They also encouraged the Secretary General to pursue contacts with the Arab League and the Organisation of the Islamic Conference (OIC), with a view to developing co-operation in this respect, taking into account the results of the Istanbul Forum. Lastly, they welcomed the efforts and initiatives of the Council of Europe and its member states, as well as the European Union, the OSCE and other institutions, with a view to promoting intercultural and inter-religious dialogue.
The Committee of Ministers endorsed the priorities defined by the GMT and as a result, the Committee of Ministers adopted the specific terms of reference for the PC-PW.