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Summary
The Assembly is concerned about the threats to human rights and fundamental freedoms resulting from some measures taken to fight terrorism since 11 September 2001.
It recalls with conviction that member States should refrain from making derogations from the European Convention on Human Rights or from extraditing presumed terrorists without having the assurance that the death penalty will not be sought in their case.
Fighting terrorism must go hand in hand with the reinforcement of legal measures and primarily with the ratification and application of existing conventions as well as with increased cooperation in the fight against the funding of terrorism.
I. Draft resolution
1. Recalling its Recommendation 1426 (1999) adopted on 23 September 1999 and its Resolution 1258 (2001) and its Recommendation 1534 (2001) on democracies facing terrorism, both of which were adopted on 26 September 2001, the Assembly considers it necessary to adopt a definite position concerning the means used to combat terrorism.
2. First of all, the Assembly would like to draw attention to the new nature of the conflict that arose as a result of the terrorist acts of 11 September which cannot be classed as a war in the traditional sense according to international law, insofar as there has been no declaration of war and nor has it been proved that the terrorist acts were carried out on the orders of a particular country. The military intervention carried out in Afghanistan as a result of the attacks is directed not against a country but against a terrorist organisation and the former government of the country of Afghanistan suspected of supporting such organisations.
3. The Assembly considers there is a need to study the causes of terrorism so that better ways may be found of combating and above all preventing them. It reiterates, however, that there can never be any justification for resorting to terrorism.
4. Eliminating support for terrorism and depriving it of all sources of funding are essential ways of preventing this form of crime
5. Efforts to combat terrorism must be carried out in compliance with national and international law and respecting human rights.
6. The Assembly considers that higher levels of education, access to decent living conditions and respect for human dignity are the best instruments for reducing support currently given to terrorism in certain countries.
7. The Assembly, which has declared itself to be strongly opposed to capital punishment and which has succeeded in ridding Europe of the death penalty, tolerates no exceptions to this principle. Therefore, prior to the extradition of suspected terrorists to countries that still apply the death penalty, assurances must be obtained that this penalty will not be sought.
8. The Assembly also insists on the fact that member States should under no circumstances extradite persons who risk being subjected to ill-treatment in contravention of Article 3 of the European Convention on Human Rights or being subjected to a trial which does not respect the fundamental principles of a fair trial.
9. In their fight against terrorism, Council of Europe member States should provide for no derogations to the European Convention on Human Rights.
10. The Assembly wishes that the Statute of the International Criminal Court be rapidly ratified and that its competence be extended to acts of terrorism.
11. Concerning judicial cooperation, the Assembly considers that the European arrest warrant to be introduced by the European Union, in so far as it applies to crimes related to terrorism, should be extended to include all member States of the Council of Europe, in full respect of the fundamental rights guaranteed by the European Convention on Human Rights.
12. The Assembly therefore calls upon all Council of Europe member States to:
i. ratify, if they have not already done so, without delay:
- the International Convention for the Suppression of the Financing of Terrorism the European Convention on the Suppression of Terrorism the European Convention on Extradition and its two additional protocols the European Convention on Mutual Assistance in Criminal Matters and its two additional protocols the European Convention on the Transfer of Proceedings in Criminal Matters
- the European Convention on Laundering, Search, Seizure, and Confiscation of the Proceeds from Crime the Convention on Cybercrime;
ii. ratify, if they have not already done so, the Statute of the International Criminal Court, as soon as possible;
iii. set up networks for cooperation between Financial Intelligence Units (FIUs) and ensure the necessary means of cooperation are put in place
iv. refuse to extradite suspected terrorists to countries that continue to apply the death sentence, in accordance with the decision of the European Court of Human Rights in the Soering case and with Article 11 of the European Convention on Extradition, unless assurances are given that the death penalty will not be sought;
v. refrain from using Article 15 of the European Convention on Human Rights to limit the rights and liberties guaranteed under Article 5 of the Convention (right to liberty and security).
II. Draft recommendation
1. The Assembly refers to its Resolution ...(2002) on combating terrorism and respect for human rights in which it advocates a number of measures member States should take to combat terrorism while ensuring respect for human rights.
2. It has noted the possible contradiction between the desire, on the one hand, to open the European Convention on the Suppression of Terrorism, which contains no explicit provision for refusing extradition in cases where there is a risk the death penalty may be applied, for ratification by Observer states and other non-member States of the Council of Europe and the refusal, on the other hand, to extradite suspected terrorists to countries applying the death penalty. The Assembly considers that this matter ought to be settled in the context of the work to update the European Convention on the Suppression of Terrorism.
3. The Assembly welcomes the decision taken by the Committee of Ministers to set up a Multidisciplinary Group on International Action against Terrorism (GMT) with the tasks of updating Council of Europe instruments in this field and identifying new and better ways in which the Council of Europe could combat this dangerous form of crime within the limits of its scope. Steps should also be taken to speed up international cooperation as regards efforts to combat laundering of the proceeds from crime, notably at the level of financial investigations, and to step up action taken to prevent the financing of terrorism.
4. Furthermore, the Assembly notes the ten new recommendations on the financing of terrorism adopted in December 2001 by the Financial Action Task Force on Money Laundering (FATF) and welcomes the decision taken by the Council of Europe's Select Committee of Experts on the Evaluation of Anti-Money-Laundering Measures (PC-R-EV) to extend the scope of the FATFss new recommendations to the whole of Europe by incorporating them in its own programme of activities.
5. Lastly, the Assembly considers that when working to promote better pan-European cooperation against terrorism the GMT should consider using the definition of terrorism adopted by the European Union.
6. Effective European cooperation is conditioned by improvements to the European judicial area which needs to harmonise the definition, creation and prosecution of indictable offences.
7. The Assembly recommends to the Committee of Ministers that:
i. the European Convention on the Suppression of Terrorism should be amended to include a provision according to which extradition may be refused in cases where there are no guarantees that the death penalty will not be sought for the accused person;
ii. international cooperation should be speeded up in respect of measures taken to combat laundering of the proceeds from crime, notably as regards financial investigations, and efforts to combat the financing of terrorism should be stepped up;
iii. the Multidisciplinary Group on International Action against Terrorism (GMT) should consider using the definition of terrorism adopted by the European Union (see Appendix).
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