Council of Europe Convention on the Prevention of Terrorism

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Council of Europe Convention on the Prevention of Terrorism

1. The purpose of the Council of Europe Convention on the Prevention of Terrorism hereafter “the Convention” is to “enhance the efforts of Parties in preventing terrorism and its negative effects on the full enjoyment of human rights, in particular the right to life, both by measures to be taken at national level and through international co-operation, with due regard to the existing applicable multilateral or bilateral Treaties or agreements between the Parties” (Article 2). The Convention obliges State parties to establish three new offences connected to those set out in 10 UN counter terrorism conventions. The United Kingdom supported the development of this Convention, and played a substantial role in its agreement. It was signed by Her Majesty’s Permanent Representative at the Council of Europe on 16 May 2005.

2. The Convention identifies a number of terrorist offences, by reference to offences in the 10 international counter terrorism Treaties listed in the Appendix. The Convention obliges States Parties to take appropriate measures with a view to preventing terrorist offences (Article 3); and, to assist and support each other with a view to enhancing their capacity to prevent the commission of terrorist offences (Article 4). The Convention requires States Parties to establish as an offence under criminal law the following offences: public provocation to commit a terrorist offence (Article 5); recruitment for terrorism (Article 6); and training for terrorism (Article 7). It also states that for an act to constitute an offence as set forth in Articles 5 to 7, it shall not be necessary that a terrorist offence is committed (Article 8).

The Convention also requires the establishment as an offence under criminal law of a number of ancillary offences relating to these offences (article 9) and provides for liability under domestic law of legal entities that participate in any of these offences (Article 10).

It also requires States parties to adopt such measures as may be necessary to protect and support the victims of acts of terrorism committed within their territory (Article 13); and to take measures to investigate when information that an alleged offender is present in its territory is received (Article 15).

The Convention requires a party to establish jurisdiction over the offences when they are committed (a) in its territory; (b) on board a ship flying its flag or an aircraft registered with it; or (c) by one of its nationals (Article 14). It further authorises, but does not require, each Party to establish its jurisdiction over an offence, when it is directed towards or resulted in the carrying out of an offence: (a) in the territory of or against one of its nationals; (b) against one of its State or government facilities abroad, including diplomatic or consular premises; (c) in an attempt to compel it to do or abstain from doing any act; and, when the offence is committed (d) by a stateless person whose habitual residence is in its territory; or (e) on board an aircraft operated by its Government (Article 14).

The Convention states that irrespective of where the offence was committed, if an alleged offender is found in the territory of a Party it must either extradite or submit the case to its competent authorities for the purposes of prosecution (Article 18).

3. The other key features of the Convention include:

Discrimination clause (Article 21): this expressly provides that nothing in the Convention shall be interpreted as imposing an obligation upon a party to extradite a person or provide mutual legal assistance for the offences concerned if the subject of the request might then be prosecuted or punished on account of his race, religion, nationality or political opinion. It also authorises a refusal to extradite to a country where there is a risk of a death sentence being applied, life imprisonment without the possibility of parole, or a risk of the accused being exposed to torture or to inhuman or degrading treatment or punishment.

Political exception clause: None of the offences to be established under the Convention are to be regarded, for the purposes of extradition or mutual legal assistance, as (or connected to) a political offence or as inspired by political motives (Article 20). However, in line with the special reservation regime introduced by the Amending Protocol to the Council of Europe Suppression of Terrorism Convention, strictly limited reservations are permitted to this provision Certain conditions and a follow-up mechanism apply to such reservations. These operate as follows:

State Parties can only apply the reservation on a case by case basis through a duly reasoned decision,
Reservations may only be made for a period of 3 years after which they will lapse unless renewed,
The obligation to ‘extradite or prosecute’ states that whenever a state party refuses extradition on the basis of a reservation, it will be obliged to submit the case to its competent authorities for the purpose of prosecution, and communicate the final outcome of the proceedings to the requesting state and the Secretary General of the Council of Europe,
If a requesting state that has had its request for extradition refused believes that within a reasonable time no judicial decision on the merits of the case has been taken in the requested state, the requesting Party may inform the Secretary General of the Council of Europe, who shall submit the matter to the Consultation of the Parties. This Consultation shall issue an opinion on the conformity of the refusal with the Convention and shall submit it to the Committee of Ministers for the purpose of issuing a declaration.

Ratification and accession: The Convention is open to the member States of the Council of Europe, the European Community and those non-member States that participated in its elaboration. (Article 23). The Committee of Ministers of the Council of Europe may also invite any State which is not a member of the Council of Europe and which has not participated in its elaboration to accede to the Convention (Article 24).

Amendment procedure: Proposals for amendments to the Convention may be considered by the Council of Europe’s Committee of Ministers and, if approved, require the acceptance of all the States Parties (Article 27).

Revisions to the Appendix, which lists the treaties in respect of which ‘terrorist offences’ are identified, are subject to a simplified procedure. Proposals to add universal treaties concluded within the United Nations System dealing specifically with international terrorism to the Appendix may be approved by the Committee of Ministers by majority vote. The addition will enter into force for those States Parties that do not object after one year (unless a third of the States Parties object, in which case it will not enter into force at all).

Oversight Arrangements: The Convention provides for the States Parties to consult periodically in order to make proposals to facilitate or improve the effective use and implementation of the Convention; formulate an opinion on the conformity of a refusal to extradite referred to them in accordance with the treaty; make proposals and formulate an opinion on any proposals for amendments of the Convention; and express an opinion on any question concerning the application of this Convention and facilitate the exchange of information on significant legal, policy or technological developments (Article 30).



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