Action against Terrorism

Specific terms of reference of the PC-PW

1. Name of Committee: Committee of Experts on the protection of witnesses and collaborators of justice (PC-PW)

2. Type of Committee: Committee of Experts

3. Source of terms of reference: European Committee on Crime Problems (CDPC)

4. Terms of reference:

Pursuant to:

- the decisions taken by the Committee of Ministers at its 111th Session (6-7 November 2002);
- the decisions taken by the Committee of Ministers at the 816th meeting of the Ministers' Deputies (13 November 2002, item 1.5);
- the decisions taken by the Committee of Ministers at the 864th meeting of the Ministers' Deputies (4 December 2003, item 10.1);

Taking into account:

- Recommendation No. R(97)13 concerning the intimidation of witnesses and the rights of the defence;

- Recommendation Rec(2001)11 concerning guiding principles on the fight against organised crime;

- Article 22 of the Criminal Law Convention on Corruption;

- Article 23 of the 2nd Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters;

- the reports of the Multidisciplinary Group on International Action against Terrorism (GMT) (documents CM(2002)57 and 148);

- the Guidelines on Human Rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002;

- Resolution No. 1 on Combating Terrorism adopted by the European Ministers of Justice at their 25th Conference (Sofia, 9-10 October 2003);

- the reports of the Committee of Experts on Terrorism (CODEXTER);

- the work of other international institutions active in the field of protection of witnesses and collaborators of justice;

- the final report on protection of witnesses and pentiti in relation to acts of terrorism prepared by the Committee of Experts on the protection of witnesses and pentiti in relation to Acts of Terrorism (document PC-PW(2003)17),

The Committee is called upon to prepare a draft legal framework for international co-operation in matters related to the protection of witnesses and collaborators of justice, including in relation to acts of terrorism, on the basis of the conclusions of the final report prepared by the Committee of Experts on the protection of witnesses and pentiti in relation to Acts of Terrorism (appearing in Appendix to the present Specific Terms of Reference).

The Committee is in particular called upon to:

- identify issues that should be addressed by means of international non-binding legal instruments and, where appropriate, elaborate draft texts;

- identify issues that should be addressed by means of international binding legal instruments and, after the interim report is approved by the CDPC, elaborate draft texts.

5. Membership of the Committee:

a. States whose governments are entitled to appoint members: all member states.

b. Desirable qualifications of persons serving on the Committee: experts on criminal law, criminal procedure and international co-operation in criminal matters.

c. One representative of the Committee of Experts on terrorism (CODEXTER).

d. The Council of Europe budget will bear the travelling and subsistence expenses of:

  • i. one expert from each member state;
  • ii. the representative of the CODEXTER.

e. The European Commission and the Secretariat General of the Council of the European Union may send representatives to the meetings of the Committee, without the right to vote or defrayal of expenses.

f. The Observer States to the Council of Europe and applicant States for Council of Europe membership may send representatives to the meetings of the Committee, without the right to vote or defrayal of expenses.

g. The following international organisations and bodies may send representatives to the meetings of the Committee without the right to vote or defrayal of expenses:

  • UN and its specialised bodies,
  • ICC,
  • ICPO-Interpol,
  • Europol,
  • OSCE,
  • ICRC.

h. The Bureau of the CDPC may authorise the admission of further observers to the Committee.

6. Structures and working methods:

The Committee may set up working parties, conduct hearings of experts and have recourse to consultants.

The Committee will provide the CDPC with an interim report on its activities and findings on the different aspects of its terms of reference by 31 December 2004.

7. Duration:

These terms of reference will expire on 31 December 2005.

Appendix to the specific terms of reference of the PC-PW
Conclusions of the final report on
protection of witnesses and pentiti in relation to acts of terrorism

1. The PC-PW considers that criminal organisations, including terrorist organisations, are operational almost all over the world and that fighting these organisations has become a priority. A great contribution to this fight can be made by witnesses and collaborators of justice who decide to co-operate with the judiciary. Such contribution can be ensured only if persons who can provide useful information and evidence enjoy adequate protection and support that allows them to deal with all the risks and implications related to the decision to co-operate with justice.

2. The replies received to the questionnaire addressed to the States and the analyses by the scientific experts, as well as the contribution provided by the representatives of the ICTY and of Europol, show the need to develop a coherent common international framework for the effective protection of witnesses and collaborators of justice. Given the essentially trans-national nature of serious crimes – such as organised crime and terrorism – and violations of international humanitarian law, improved and effective international co-operation seems to be particularly important. The PC-PW considers that from a technical point of view it is necessary to move a step forward with respect to the existing Committee of Ministers' Recommendation (97)13 concerning the intimidation of witnesses and the rights of the defence in order to define a comprehensive set of measures to increase the protection of witnesses and collaborators of justice, especially with respect to the fight against terrorism, and in particular to the need to strengthen international co-operation.

3. The protection of witnesses and collaborators of justice giving evidence in terrorism-related cases is crucial in order to achieve successful results in the fight against terrorism and terrorist organisations, as was also recalled in Resolution No. 1 on Combating International Terrorism approved at the 24th Conference of European Ministers of Justice in Moscow. Witness protection is especially important in the fight against organised crime and terrorism because the closed nature of criminal and terrorist groups makes it very difficult to use traditional investigative methods successfully. Testimony obtained in this way can provide useful information about a whole criminal group, which is capable, by intimidating, harming or bribing witnesses, of obstructing investigations and justice.

4. The PC-PW considers, therefore, that it would be technically feasible and advisable to establish an international legal framework for international co-operation in matters related to the protection of witnesses and collaborators of justice.

5. The framework might consist of a combination of different complementary instruments:

  • a. The core of this framework should be a Conventional instrument, which could take the form of a new independent Convention or of an additional instrument to existing conventions.

    Such an instrument should aim, in particular, at facilitating international co-operation on issues such as mutual recognition of decisions, mutual assistance, exchanges of information, use of advanced technical (tele-)communication means, relocation and other practical matters concerning the effective protection of witnesses and collaborators of justice, including security and confidentiality aspects.

    It may also be necessary to recommend that terrorism-related crimes always be included in the offences for which specific witness protection measures/programmes/mechanisms are envisaged. The PC-PW recognises the need to ensure that protective measures for witnesses and collaborators of justice involved in terrorism-related crimes are adopted in all countries and are the subject of international agreements facilitating international co-operation. Such an important issue could be part of an international instrument specifically aimed at the protection of witnesses and collaborators of justice, as well as of a possible comprehensive international instrument related to the fight against terrorism.

    Finally, such an instrument should set common criteria aiming at preserving an acceptable balance between the protection measures and the human rights and fundamental freedoms of all the parties involved (witnesses/collaborators of justice, defendants, victims).

  • b. The framework should be completed by elements of “soft law”, like a recommendation to member states, with the purpose of enhancing the compatibility of national criminal justice systems in relation to the other aspects of the protection of witnesses and collaborators of justice. For this purpose, it could be recommended to proceed to a revision of Committee of Ministers' Recommendation (97)13 concerning the intimidation of witnesses and the rights of the defence. This revision should be aimed at extending its scope on the basis of the additional experience and information acquired since the adoption of this Recommendation. Moreover, this new instrument could be supplemented by practical suggestions, such as models of regulatory texts.

6. Considering the work of the GMT in the field of the fight against terrorism and the work undertaken, in the past and recently, in the fight against organised crime, the Council of Europe would have the necessary expertise to develop an international instrument in this field. The development of international common standards would also facilitate and reinforce the activity of international legal institutions. The existence of a regional or international instrument for the protection of witnesses and collaborators of justice would, for instance, provide a stronger legal basis for the agreements currently concluded between the ICTY and some States, and facilitate the work of the witness protection service at the International Criminal Court.