Strasbourg, 10 June 2004
CEPEJ (2004) 13 REV 1
RESTRICTED
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)
Evaluation Report
on the efficiency of the national judicial systems
in
their responses to terrorism
Document prepared
by
Mr Ph. de Koster
(Belgium)
Introduction
The yardstick of the efficiency of the national legal systems in their response to terrorism: empirical criteria for evaluation
19. However, the twofold moral and legal condemnation of terrorism has led to the difficult question of an appropriate definition of terrorism as the basis for making it a criminal offence. “No matter what cause is being defended, it will always be dishonoured by the blind massacre of an innocent crowd”. [13] Clearly, no cause is worthy of being defended by blind violence, no right and no freedom merits being asserted by the deliberate disregard of the natural law. There is no need to be reminded that Article 2 of the Convention - an intangible provision of the Convention – requires that each State guarantee its citizens the right to life.
In this context, the Decision of the Committee of Ministers at the level of Deputies on the activities of the Council of Europe in the fight against terrorism[20]can be noted. Within the framework of the examination of the follow up to be given to the Declaration of the Committee of Ministers of 12 September 2001 on the fight against international terrorism, this Decision instructed the European Observatory of reservations to international treaties within the CAHDI to examine the question of reservations to regional and universal conventions on terrorism and proceed to exchanges of views on conventions on terrorism under preparation within the United Nations, with a view to coordinating Member States’ positions.
The CAHDI examines the list of reservations and declarations to relevant international treaties on the fight against terrorism which appears in Document CAHDI (2004)3.
Implementation of the Law on the European arrest warrant with effect from: |
State of transposition of the framework decision on the fight against terrorism |
|
Germany |
- |
Bill (February 2004) |
Austria |
1 May 2004 |
Transposed |
Belgium |
(1 January 2004) |
Transposed (Law of 19 Dec. ’04) |
Denmark |
1 January 2004 |
Transposed |
Spain |
1 January 2004 |
Transposed |
Finland |
1 January 2004 |
Transposed |
France |
12 (Paris)/13 March 2004 |
Transposed |
Greece |
- |
- |
Ireland |
1 January 2004 |
Bill (February 2004) |
Italy |
- |
Transposed |
Luxembourg |
26 March 2004 |
Transposed |
Netherlands |
12 May 2004 |
- |
Portugal |
1 January 2004 |
Transposed |
United Kingdom |
1 January 2004 |
Transposed |
Sweden |
1 January 2004 |
Transposed |
Cyprus |
1 May 2004 |
- |
Estonia |
- |
- |
Hungary |
1 May 2004 |
Transposed (Criminal Code 1 March 2003) |
Latvia |
- |
- |
Lithuania |
1 May 2004 |
- |
Malta |
- |
- |
Poland |
1 May 2004 |
- |
Czech Republic |
- |
- |
Slovakia |
- |
- |
Slovenia |
1 May 2004 |
- |
Country |
Reports - dates |
Specialist police services |
Specialist judicial authorities |
Specialist financial intelligence units |
Competent intelligence services |
|
1 |
Albania |
S/2001/1309 (31/12/2001) S/2002/973 (29/08/2002) |
no (Directorate of the Ministry of Finance) |
State intelligence services |
||
2 |
Germany |
S/2002/11 (02/01/2002) S/2002/1193 (24/10/2002) S/2003/671 (25/06/2003) S/2004/129 (20/02/2004) |
Federal criminal police, Federal Office for the protection of the Constitution |
Attorney General attached to the Constitutional Court |
FIU Deutschland, police |
Federal intelligence service |
3 |
Andorra |
S/2001/1244 (26/12/2001) S/2002/1047 (19/09/2002) |
UPB, administrative |
|||
4 |
Armenia |
S/2002/162 (12/02/2002) S/2003/146 (04/02/2003) S/2003/1044 (27/10/2003) |
no (Central Bank) |
|||
5 |
Austria |
S/2001/1242 (26/12/2001) S/2002/969 (29/08/2002) S/2003/276 (06/03/2003) S/2004/16 (13/01/2004) |
Anti-terrorist Brigade EDOK, Federal entity for the protection of the State and the fight against terrorism |
Federal bureau of criminal investigations |
Federal intelligence service |
|
6 |
Azerbaijan |
S/2001/1325 (31/12/2001) S/2002/1022 (13/09/2002) S/2003/1085 (13/11/2003) |
Attorney General’s Office |
|||
7 |
Belgium |
S/2001/1266 (27/12/2001) S/2003/526 (19/05/2003) S/2004/156 (27/02/2004) |
Anti-terrorist interforce group |
Federal Attorney General |
CTIF-CFI, administrative |
State Security |
8 |
Bosnia-Herzegovina |
S/2001/1313 (31/12/2001) S/2002/1086 (27/09/2002) |
Service of special teams |
no (Federal bank organisation) |
Federal intelligence service |
|
9 |
Bulgaria |
S/2001/1273 (27/12/2001) S/2002/793 (19/07/2002) S/2003/632 (09/06/2003) |
National service for the fight against organised crime |
Central service for special investigations |
BFI, administrative |
National intelligence services |
10 |
Cyprus |
S/2001/1243 (24/12/2001) S/2002/689 (20/06/2002) S/2003/263 (07/03/2003) S/2004/86 (04/02/2004) |
MOKAS, judicial |
Central intelligence agency |
||
11 |
Croatia |
S/2001/1271 (27/12/2001) S/2002/727 (05/07/2002) S/2003/454 (25/04/2003) S/2004/128 (20/02/2004) |
Attorney General’s Office |
AMLD, administrative |
||
12 |
Denmark |
S/2001/1303 (08/01/2002) S/2002/789 (19/07/2002) S/2003/274 (06/03/2003) S/2004/119 (18/02/2004) |
Directorate of civil defence |
SOK, mixed |
||
13 |
Spain |
S/2001/1246 (24/12/2001) S/2002/778 (19/07/2002) S/2003/628 (09/06/2003) |
Audiencia nacional (specialist central court sitting in Madrid) to which investigating judges are attached |
SEPBLAC, administrative |
||
14 |
Estonia |
S/2001/1315 (10/01/2002) S/2002/870 (01/08/2002) S/2003/275 (06/03/2002) S/2004/22 (13/01/2004) |
Directorate-general for security |
Ordinary criminal courts, composes of benches of three judges |
RA, police |
|
15 |
Former Yugoslav Republic of Macedonia |
S/2001/1333 (31/12/2001) S/2002/1048 (19/09/2002) |
(Special anti-terrorist unit within the army) |
Intelligence agency |
||
16 |
Federation of Russia |
S/2001/1284 (27/12/2001) S/2001/1284/add.1 (18/01/2002) S/2002/887 (06/08/2002) S/2003/839 (27/08/2003) |
Attorney General of the Federal of Russia |
FMC, administrative |
Intelligence service |
|
17 |
Finland |
S/2001/1251 (28/12/2001) S/2002/879 (01/08/2002) S/2003/279 (04/03/2003) S/2004/118 (18/02/2004) |
National Bureau of investigation |
Attorney General’s Office |
MLCH, police |
Security services responsible for intelligence |
18 |
France |
S/2001/1274 (27/12/2001) S/2002/783 (19/07/2002) S/2003/270 (10/03/2003) S/2004/226 (29/03/2004) |
Unit for the coordination of the fight against terrorism (UCLAT) |
Central service for the fight against terrorism attached to the office of the Attorney General for Paris, Paris Tribunal de grande instance, Anti-terrorist investigating judges, special Assize Court composed of professional judges |
Tracfin, administrative |
DST, Central directorate for general intelligence |
19 |
Georgia |
S/2002/3 (02/01/2002) S/2002/3/add.1 (03/07/2002) S/2002/1185 (21/10/2002) |
Special service for the protection of the security of the State, Centre for the fight against terrorism |
General intelligence service |
||
20 |
Greece |
S/2002/43 (09/01/2002) S/2002/857 (06/11/2002) S/2003/772 (18/07/2003) S/2004/136 (20/02/2004) |
CFCI, administrative |
|||
21 |
Hungary |
S/2002/32 (08/01/2002) S/2002/1153 (15/10/2002) S/2003/787 (31/07/2003) |
Anti-terrorist unit |
ORFK, police |
National security office |
|
22 |
Ireland |
S/2001/1252 (28/12/2001) S/2002/675 (17/06/2002) S/2003/816 (18/08/2003) |
National office for criminal investigations |
Possibility of special criminal courts |
MLIU, police |
|
23 |
Iceland |
S/2001/1308 (31/12/2001) S/2002/1020 (13/09/2002) S/2003/997 (15/10/2003) |
National police commissariat |
RLS, police |
||
24 |
Italy |
S/2002/8 (02/01/2002) S/2002/1390 (20/12/2001 S/1390/add.1 (01/04/2003) S/2003/724 (18/07/2003) S/2004/253 (29/03/2004) |
Department of public security, Directorate-General for the criminal police |
Attorney General for the principal town in the judicial district |
UIC, administrative (Financial Security Committee) |
Intelligence services |
25 |
Latvia |
S/2002/9 (02/01/2002) S/2002/1370 (16/12/2002) S/2003/1174 (15/12/2003) |
Office for the defence of the Constitution |
KD, administrative |
||
26 |
Liechtenstein |
S/2001/1253 (27/12/2001) S/2002/788 (19/03/2003) S/2003/273 (06/03/2003) S/2004/254 (29/03/2004) |
EFFI, administrative (Group for the coordination of the fight against the financing of terrorism) |
|||
27 |
Lithuania |
S/2002/23 (02/01/2002) S/2002/2019 (13/09/2002) S/2003/842 (27/08/2003) |
Attorney General’s Office |
MLPD, police |
||
28 |
Luxembourg |
S/2002/6 (02/01/2002) S/2002/1018 (13/09/2002) S/2003/1014 (16/10/2002) |
Special terrorism group |
Attorney General of Luxembourg, trial courts of the judicial district of Luxembourg |
Anti-laundering service of the Attorney General attached to the court of the judicial district of Luxembourg, judicial |
State Intelligence Service |
29 |
Malta |
S/2001/1250 (28/12/2001) S/2002/876 (01/08/2002) S/2003/1118 (24/11/2003) |
FIAU, administrative |
|||
30 |
Moldova |
S/2002/33 (08/01/2002) S/2002/1044 (19/09/2002) S/2002/978 (10/10/2003) |
State Security Services |
Attorney General’s Office |
Intelligence service |
|
31 |
Norway |
S/2001/1138 (30/11/2002) S/2002/791 (19/07/2002) S/2003/265 (06/03/2003) |
Civil Security Service |
Attorney General |
OKOKRIM, police |
|
32 |
The Netherlands |
S/2001/1264 (27/12/2001) S/2002/1136 (07/10/2002) S/2003/897 (17/09/2003) |
National Police Office |
Attorney General |
MOT, administrative |
National security service |
33 |
Poland |
S/2001/1275 (27/12/2001) S/2002/677 (17/06/2002) S/2003/271 (10/03/2003) |
Central office of investigations |
GIIF, administrative |
National security service |
|
34 |
Portugal |
S/2002/120 (25/01/2002) S/2002/120 add.1 (20/03/2002) S/2002/1190 (24/10/2002) |
Judicial police |
UIF, police |
General intelligence service |
|
35 |
Czech Republic |
S/2001/1302 (31/12/2001) S/2002/872 (01/08/2002) S/2003/261 (07/03/2003) S/2004/171 (02/03/2004) |
Special division of the police |
FAU, administrative |
Intelligence and security services |
|
36 |
Romania |
S/2001/1339 (31/12/2001) S/2002/949 (28/08/2002) |
Attorney General attached to the Supreme Court of Justice |
ONPCSB, police |
Intelligence service |
|
37 |
United Kingdom |
S/2001/1232 (24/12/2001) S/2002/787 (19/07/2002) S/2003/264 (06/03/2003) S/2004/157 (27/02/2004) |
NCIS, police |
Intelligence services |
||
38 |
San Marino |
1292 (08/01/2002) S/2002/786 (19/07/2002) S/2003/841 (27/08/2003) |
Coordinator of police forces |
Specialist investigating judge |
||
39 |
Serbia |
S/2001/1328 (31/12/2001) S/2002/1025 (13/09/2002) |
Special anti-terrorist service |
APML, administrative |
||
40 |
Slovakia |
S/2001/1225 (21/12/2001) S/2002/730 (05/07/2002) S/2004/65 (23/01/2004) |
Group dealing with crises linked with terrorism |
SJFP, police |
||
41 |
Slovenia |
S/2001/1277 (27/12/2001) S/2001/1277/ corr.1 (04/02/2001) S/2002/863 (01/08/2002) S/2003/1086 (13/11/2003) |
Attorney General |
OMLP, administrative |
National security and intelligence office |
|
42 |
Sweden |
S/2001/1233 (24/12/2001) S/2002/691 (20/06/2002) |
Security service |
NFIS, police |
||
43 |
Switzerland |
S/2001/1224 (20/12/2001) S/2002/868 (01/08/2002) S/2003/967 (06/10/2003) |
Task force terror USA , Interdepartmental terrorism group |
Attorney General of the Confederation |
MROS, police |
|
44 |
Turkey |
S/2001/1304 (31/12/2001) S/2002/948 (23/08/2002) S/2003/856 (03/09/2003) |
Directorate General for security |
Special courts |
MSK, administrative |
National intelligence service |
45 |
Ukraine |
S/2001/1330 (31/12/2001) S/2002/1030 (13/09/2002) S/2002/1084 (13/11/2003) |
Security service (anti-terrorist centre) |
SDFM, administrative |
Intelligence services |
87.Proactive action must retain a judicial purpose. Consequently, a “fishing expedition” or action which merely has a policing purpose is not permitted; there must be a reasonable suspicion that punishable offences have been committed but are not yet known, or that such offences are going to be committed. A proactive investigation is justified in the case of the most serious crimes or offences, and therefore terrorism. It is to the credit of Professor Jean Pradel that he proposed that statutory provisions governing proactive investigations be drafted; [69] he defined such investigations as “all the investigations which most frequently use special techniques to prevent the probable commission of offences or to detect offences which have already been committed but remain unknown”. [70] Proactive investigations must satisfy the criteria of legality, subsidiarity and proportionality, [71] which were examined by the Committee of Experts on special investigation techniques. The development of special investigation and proactive investigation techniques seems likely to reinforce a response on the part of States which respects the pre-eminence of the law.
88.With a view to more vigorous criminal action, it is possible to envisage recommending the development and implementation of all the investigation techniques capable of preventing and suppressing terrorism, provided that that does not entail ceasing to respect the principles of the European Convention on Human Rights.
89.It also appears that the gathering of evidence in the context of mutual judicial assistance leaves something to be desired.
90.One expert of the Council of Europe considered that “the mechanisms of mutual police and judicial assistance in criminal matters for the establishment of a common legal framework have not proved as efficient and expeditious as hoped and have not made it possible to take energetic measures against the most dangerous international criminal organisations”, for instance because the States from which assistance is requested have little interest in the investigations where unilateral assistance is sought and because the States cling on to sovereignty in the administration of criminal justice. [72]
91. At the end of 2003, the European Commission presented a proposal seeking to create a European evidence warrant which will apply the principle of mutual recognition to the obtaining of certain types of evidence for use in criminal proceedings. That proposal forms part of the framework of the work being carried out within the European Union in order to establish a European area of freedom, security and justice. It is based on the principle of mutual recognition of judicial decisions, which according to the Tampere European Council in 1999 should become the cornerstone of judicial cooperation. The basic idea is that the European warrant will be a decision issued by a judicial authority in one member State and directly recognised and executed in another member State. Compared with the existing mutual judicial assistance procedures which it will replace, the European evidence warrant will have a number of advantages; in particular, it will make it possible to speed up the proceedings and will offer clear guarantees as regards its issue and execution.
92.The approach adopted in respect of this European warrant will also make it possible to overcome the significant differences between member States as regards their criminal procedures. While the warrant states the objective to be attained, the executing State is none the less free to determine the best means of obtaining the evidence in accordance with its domestic law. This will thus avoid the problem which arises in a system based on the mutual recognition of national decisions, where some member States are required to execute a search warrant, when they would normally employ a less intrusive mechanism. Thus, in order to obtain bank information it is necessary in some member States to use a search order and in other States a production order, which is less intrusive.
93.The proposal contains specific guarantees. In the issuing State, a European evidence warrant can be issued only by a judge, an investigating magistrate or a prosecutor. The issuing authority will have to be satisfied that he would be entitled to obtain the objects, documents or data in similar circumstances if they were available on the territory of his own member State. Thus, the European evidence warrant will not be capable of serving to avoid the national guarantees applicable to the search for evidence. In the executing State, protection of the right not to give self-incriminating evidence is guaranteed. In both the issuing State and the executing State there must be a right to an effective remedy where coercive measures have been applied in order to obtain the evidence.
94.The efficiency of the investigations will be able to be increased from such an aspect. This example may serve as the basis for new European judicial cooperation.
95. The emergence of new mechanisms alongside old conventions which have been amended by protocols raises the fundamental question of the existence of a clear and consistent code of rules on mutual international assistance. The multiplicity of instruments may render mutual assistance difficult and unwieldy when it should be simple, rapid and efficient. The coordination of the texts developed within the Council of Europe incorporating the new mechanisms of the European Union and the preparation of a vademecum relating to their use would be instruments capable of increasing the efficiency of the States’ response in the face of particularly serious phenomena.
96. Such an initiative could be entrusted to the competent committees of the Council of Europe.
104. It is necessary to speed up, extend and bring up to date the initial and continuous training of judges so that the judicial authorities will have the competences most appropriate to the implementation of mutual assistance and extradition. The development of specialised training in relation to the most serious crimes should be encouraged.
Summary of the suggestions of the Report
· Notwithstanding the difficulties involved in defining terrorism for the purpose of making it a criminal offence, it is extremely desirable that terrorism be made a pan-European criminal offence. The definition of such a criminal offence would have the advantage of extending the work carried out by the European Union and would show the common commitment to waging an effective fight against terrorism. It would have the further advantage that in the sensitive area of terrorism it would be possible to abandon the principle that the offence in respect of which extradition is sought must be an offence in both of the countries concerned; and the measure defining the offence would constitute a harmonised provision whose conformity with Article 7 ECHR would be amenable to review by the Court.
As regardschoices of an efficient legal response in the face of terrorism
· It is recommended that the member States bear in mind the need to reconcile the efficiency of the fight against terrorism with respect for rights and fundamental freedoms by ensuring that their choices in terms of judicial organisation are consistent with the Council of Europe Guidelines on human rights.
As regards state structures responsible for the fight against terrorism
· The development of the work of Codexter (profiling) with a view to the rapid establishment of a data base which would allow an overall analytic view of those conducting and involved in criminal proceedings against terrorists should be encouraged.
· In the interest of the efficiency of criminal investigations in a transnational dimension, it appears advisable to recommend at least the setting-up of specialised central judicial entities.
· It does not appear desirable to recommend the continuation, the creation or the abolition of the investigating judge.
· From the aspect of increased collaboration between the intelligence services and the authorities responsible for prosecuting terrorist offences, it is desirable that the particular characteristics of the services and also the purpose of their action be consistent with the principles that govern a fair trial
As regards evidential difficulties
· With a view to more vigorous criminal action, it is possible to envisage recommending the development and implementation of all the investigation techniques capable of preventing and suppressing terrorism, provided that that does not entail ceasing to respect the principles of the European Convention on Human Rights.
· Such an initiative could be entrusted to the competent committees of the Council of Europe.
As regards judges’ training
· It is necessary to speed up, extend and bring up to date the initial and continuous training of judges so that the judicial authorities will have the competences most appropriate to the implementation of mutual assistance and extradition. The development of specialised training in relation to the most serious crimes should be encouraged.
As regards victims’ rights
· It can be recommended that the member States’ legal response take proper account of the status of the victim by adopting measures enabling them to make use of them, while fully respecting the European Convention on Human Rights.
[1] See Report of Bulgaria MJU-25(2003)1, Report of the Secretary General of the Council of Europe MJU-25(2003)2, Report of Germany MJU-25(2003)5, Report of Bosnia-Herzegovina MJU-25(2003)6, Report of Liechtenstein MJU-25(2003)7, Report of Serbia and of Montenegro MJU-25(2003)10, Report of Slovenia MJU-25(2003)9, Report of Cyprus MJU-25(2003)11, Report of Sweden MJU-25(2003)8, Report of The Former Yugoslav Republic of Macedonia MJU-25(2003)15, Report of Poland MJU-25(2003)14, Report of Norway MJU-25(2003)4, Report of Turkey MJU-25(2003)3, Report of Hungary MJU-25(2003)17, Report of Spain MJU-25(2003)18, Report of Canada MJU-25(2003)12, Report of UNMIK MJU-25(2003)16, Report of the International Commission on Civil Status MJU-25(2003)13.
[2] See Codexter (2004) misc 02 of 30 March 2004.
[3] See Cassese, A., Violence et droit dans un monde divisé, P.U.F., Coll. Perspectives internationales, 1990, p. 115.
[4] The words are those of Marcelo Kohen, Professor of International Law at Geneva, in an article entitled “L’arme de la civilisation, c’est le droit” (“The weapon of civilisation is the law”, Le Temps, 17 September 2001.
[5]Euro Court HR, the Brogan and others v. United Kingdom judgment, Series A no. 145-B; the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182.
[6] Euro Court HR, the Cemil Kiliç v. Turkey judgment, Reports of Judgments and Decisions 2000-III, p. 62; on an interference aimed at protecting the rights and freedoms of others, see ECHR, the Chassagnou and Others v. France judgment of 29 April 1999, Reports 1999-III, § 113.
[7]Euro Court HR, the Klass and Others v. Germany judgment, Series A no. 28.
[8] Euro Court HR, the Margaret Murray and Others v. United Kingdom judgment of 28 October 1994, Series A no. 300-A.
[9] Euro Court HR, the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII.
[10] Adopted by the Committee of Ministers on 11 July 2002 at the 804th Meeting of Ministers’ Deputies.
[11] For the resolutions of the Parliamentary Assembly of the Council of Europe, see The fight against terrorism: Council of Europe standards, publications of the Council of Europe, 2004, p. 325 et seq.
[12] See Recommendation 1644 (2004) of 29 January 2004; Codexter (2004) 06.
[13] See Albert Camus, Chroniques algériennes, Actuelles III, 1958.
[14] See the summary of the definitions of the various international or regional instruments, below.
[15] See de Salvia, M., Compendium de la CEDH, article 7, p. 387.
[16] See de Schutter, O., La Convention européenne des droits de l’homme à l’épreuve de la lutte contre le terrorisme, in Lutte contre le terrorisme et droits fondamentaux, Bruylant, 2002, p. 141.
[17] European Convention on Human Rights, the Kokkinakis v. Greece judgment of 25 May 1993, § 52.
[18] See Codexter (2004) 05 restricted of 16 February 2004, see also Codexter (2003) 13 of 23 October 2003 for a comparative examination of the scope of the United Nations conventions on the fight against terrorism.
[19] See the Report by the Secretary General in Sofia, MJU – 25 (2003) 2, §§. 25, 33, 62.
[20] CM/Del/Dec (2001) 765 bis, point 21, Strasbourg 21 septembre 2001
[21] See Codexter (2004) 17 prov of 2 April 204, para. 15.
[22] Official Journal 2002 L 164, 22.06.2002.
[23] These measures are additional to those already provided for in Framework Decision 2001/220/JHA.
[24] See OJ 2002 L 190, 12 July 2002, p. 1.
[25]Notwithstanding the Charter of Fundamental Rights proclaimed at the European Council in Nice in December 2000, the arrest warrant falls within the scope of Article 5 ECHR.
[26] Tribunal Correctionnel, Mons (Chambre du Conseil), decision of 24 April 2004 Procureur fédéral v. M. L., this decision is under an appeal; Tribunal Correctionnel, Mons (Chambre du Conseil), decision of 28 April 2004 Procureur fédéral v. M. U.; and Cour d’appel, Mons, judgment of 13 May 2004.
[27] See Com (2004) 221 final of 29 March 2004, reproduced in a document of the Council of the European Union of 5 April 2004, 8200/04, JHA 109.
[28] L’impossible guerre contre le terrorisme. Entretien avec Pierre Hassner, “ Esprit” August-September 2002, p. 72 et seq.
[29] European Convention on the suppression of terrorism (STE no. 90), 27 February 1997.
[30] Explanatory Report on the European Convention on the suppression of terrorism, § 5.
[31] Explanatory Report, § 12.
[32] Protocol (ETS no. 90).
[33] See §§ 17 and 18 of the Explanatory Report on the amended Convention in The Fight against terrorism – Council of Europe Standards, 2003, p. 20.
[34] See for the initial draft recommendation, and more particularly § 11, Codexter (2004) 06, p. 8.
[35] See de Salvia, M., Compendium de la CEDH, Article 7, p. 387.
[36] See de Schutter, O., La Convention européenne des droits de l’homme à l’épreuve de la lutte contre le terrorisme, in Lutte contre le terrorisme et droits fondamentaux, Bruylant, 2002, p. 141.
[37] Euro Court HR, the Kokkinakis v. Greece judgment of 25 May 1993, § 52.
[38] This description is taken from G. Guillaume, Terrorisme et droit international, R.C.A.D.I., 1989-III, vol. 215, p.304.
[39] See response of France, PC-TI (2003) 8, p. 73.
[40] See FATF-XII, Report on Money Laundering Typologies 2000-2001, p. 21.
[41]Euro Court HR, the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182.
[42] See Euro Court HR, the Klass judgment, § 48.
[43] See Euro Court HR, the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, §§ 27 and 30.
[44] See Euro Court HR, the Indelicato v. Italy judgment of 18 October 2001 (ref. HUDOC 2885), which states that Article 3 ECHR enshrines one of the fundamental values of democratic societies even in the most difficult circumstances such as the fight against terrorism and organised crime.
[45] See PC-TI (2003), 11 October 2003.
[46] See Euro Court HR, the Margaret Murray and Others v. United Kingdom judgment of 28 October 1994, Series A no. 300-A.
[47] See the explanatory memorandum by the Rapporteur of the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe, point II, Codexter (2004) 6 of 25 February 2004.
[48] See Report on Money Laundering Typologies 2001-2002, GAFI-XIII, p. 2.
[49] See Report on Money Laundering Typologies 2002-2003, GAFI-XIV, p. 7: Terrorist groups may derive income from criminal acts, as does organised crime. One terrorist group cited as an example in the exercise on typologies for that year and the preceding years derives the bulk of its capital from kidnapping (demanding ransoms) and extortion (of so-called “revolutionary tax” or protection money). Another group, also mentioned in previous exercises, uses funds obtained through narcotics trafficking for the bulk of its income. In obtaining funds from illegal activities, the actions of the terrorist group do not differ from those of a non-terrorist criminal organisation.
[50] Convention EST 141 of the Council of Europe of 8 November 1990.
[51] See for the most recent state of advancement of the works the report of the third meeting of the PC-RM, PC-RM (2004) 12 of 3 May 2004.
[52] Official Journal 2002 L 349 of 24.12.2002, p. 1; on 23-24 January 2004 the Article 36 Committee approved the subject of the first evaluation of the exchange of information relating to terrorist activities between the prosecution authorities, the information services and any other service dealing with aspects of terrorism including national and European coordination.
[53] The reports on Belgium and France will be examined on 8 June 2004. It should be noted that on 25 March 2004 the European Council requested an interim report in September 2004 and a final report covering the new accession States in September 2005.
[54] See Framework Decision of 13 June 2002, published in OJ 2002 L 162, 20 June 2002, p. 1.
[55] See OJ 2003 L 16, 22 January 2003.
[56] See as regards this argument set out in the context of the study of the corpus juris which drew up a number of guiding principles in relation to the criminal protection of the financial interests of the European Union, the work by M. Delmas Marty and J. Vervaele, La mise en œuvre du corpus juris dans les Etats membres, Intersentia, 2000, vol. I. In putting forward the idea of a European prosecutor’s office, the authors of the corpus juris are no longer speaking of an investigating judge but of a European investigating division.
[57] See T. Coosemans, “Promouvoir l’Europe du renseignement: nécessité et perspectives”, Revue du Marché commun et de l’Union européenne, April 2004, p. 241.
[58] See J.-P. Brodeur, “Les services de renseignement et les attentats de septembre 2001”, International Center for Comparative Criminlogy, University of Montreal (available (in French) at www.unites.uqam.co); see also G. Treverton, “Reshaping intelligence to share with ‘ourselves’”, Commentary no. 82, publication of the Canadian Security Intelligence Service, 16 July 2003 (available at www.csis-scrs.gc.ca).
[59] See WEU Assembly, “Parliamentary oversight of the intelligence services in the WEU countries – current situation and prospects for reform”, report submitted on behalf of the Committee for Parliamentary and Public Relations by Ms Kestelijn-Sierens, Document A/1801 of 4 December 2002, 48th session.
[60] See WEU Assembly, “The new challenges facing European intelligence – reply to the annual report of the Council”, report submitted on behalf of the Defence Committee by Mr Lemoine, document A/1775, 4 June 2002.
[61] Report of the symposium “Secret d’Etat ou transparence?”, 20 January 1999 – Standing Committee for the supervision of the intelligence services, Activities Report 1999, Belgium.
[62] See PC-TI report, op. cit., § 51; see Euro Court HR, the Rotaru judgment of 4 May 2000, Reports 2000-V, 59: a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it.
[63] WEU Assembly, “Parliamentary oversight of the intelligence services in the WEU countries – current situation and prospects for reform”, op. cit.
[64] See Euro Court HR, the Margaret Murray judgment, cited above.
[65] See Euro Court HR, the Leander v. Sweden judgment of 26 March 1997, Series A no. 116..
[66] See report of the Committee of Experts on special investigation techniques in relation to terrorism, PC-TI (2003) 11, 6 October 2003.
[67] See Euro Court HR, the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182; the Court considered that terrorist crime came within a special category which obliged the police to act expeditiously to make use of the information in order to reduce the risk of suffering and loss of human life.
[68] It is symptomatic that Western intelligence services increasing focus their activities on organised crime and, of course, on terrorism.
[69]See Jean Pradel, De l’enquête pénale proactive: suggestions pour un statut légal, Dalloz, 1998, p. 57 et seq.
[70] See PC-TI report, op.cit., § 47.
[71] See PC-TI report, op. cit., § 48.
[72] See PC-OC (2004) 2 of 16 February 2004, opinion by Mr Stefano Dambruso, a prosecutor in Milan.
[73] See G. Oberto, “Recrutement et formation des magistrats en Europe”, published by Council of Europe Publications in March 2003.
[74] See Council of Europe, MJU-25 (2003) 1, p. 11.
[75] Final Report on the first evaluation exercise – mutual legal assistance in legal matters, Official Journal 2001 L 216, 1 August 2001, pp. 14-26.
[76] Taken from M. Walzer in Guerres justes et injustes, Paris, Belin, 1999, p. 278.
[77] See Convention ETS 116 of 24 November 1983, see also Excerpt from the Summary Report of the 48th meeting of the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC), Codexter (2004) 08 of 16 March 2004.
[78] See Com (2001) 536 final.
[79] See proposal for a directive, published in OJ 2003 C 405, 25 February 2003, pp. 69 to 89.
[80] See article by R. Cario, “Terrorisme et droit des victims”, in Terrorisme, victimes et responsabilité pénale internationale, Calman-Lévy, 2003, pp. 342 et seq.
[81] Recommendation adopted on 28 June 1985 at the 387th meeting of the Ministers’ Deputies.
[82] See OJ 2001 L 82, 22 March 2001, pp. 1 to 4.
[83] Recital 8 to the Framework Decision of 15 March 2001.
[84] Recital 9.
[85] See Euro Court HR, the Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV; see also the Pérez v. France judgement of 12 February 2004
[86] The words are borrowed from the President of the association SOS Attentats in his introduction to the work entitled “Terrorisme, victimes et responsabilité pénale internationale”, Calman-Lévy, 2003.