Draft protocol amending the Council of Europe Convention on the Prevention of Terrorism
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 25 June 2025
(24th sitting) (see Doc. 16186, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Titus Corlăţean). Text
adopted by the Assembly on 25 June 2025 (24th sitting).
1. Reiterating in the strongest terms
its condemnation of terrorism in all its forms, the Parliamentary Assembly
welcomes the finalisation of the draft protocol amending the Council
of Europe Convention on the Prevention of Terrorism (hereinafter
“the draft protocol”) as a way to further strengthen the fight against
this scourge by taking into account its recent evolution.
2. For many years, the Council of Europe has been developing
key legal standards to combat terrorism. Its main legal instrument
in the field of counter-terrorism, the Council of Europe Convention
on the Prevention of Terrorism (CETS No. 196, hereinafter “the Warsaw
Convention”), was adopted in 2005 with the aim of improving counter-terrorism
policies and strategies at the domestic level while facilitating
international co-operation. In 2015, with the adoption of the Additional
Protocol to the Council of Europe Convention on the Prevention of
Terrorism (CETS No. 217), the Council of Europe became the first
international organisation to set up a regional legal instrument
to implement the obligations imposed by the United Nations Security
Council Resolution 2178 (2014) regarding the fight against foreign
terrorist fighters.
3. Once adopted, the draft protocol will introduce the first
internationally binding and comprehensive definition of terrorism
expanding the current wording of Article 1 of the Warsaw Convention
to encompass all forms of terrorism currently prevalent. In particular,
acts such as cyberterrorism affecting critical infrastructure or
environmental terrorism were not fully anticipated in 2005 when
the Warsaw Convention was adopted. The introduction of a common
pan-European legal definition of a “terrorist offence”, reflecting
contemporary challenges, is therefore a welcome and desirable step.
4. The draft protocol modifies the definition of a terrorist
offence for the purposes of the Warsaw Convention through the addition
of a list of criminal acts which, when intentionally committed with
a terrorist aim and given their nature or context, may seriously
damage a country or an international organisation. The proposed definition
closely resembles that contained in Article 3 of Directive (EU)
2017/541 of the European Parliament and of the Council on combating
terrorism and departs from it only insofar as necessary to apply
to the framework of the Warsaw Convention and its Additional Protocol.
5. While understanding the need to strengthen the tools to prevent
and combat terrorism, the Assembly takes note of the concerns expressed
by some Council of Europe member States and international institutions, relating
to the scope of the proposed definition of terrorism, which in their
view could potentially lead to legal uncertainty and arbitrary,
overbroad and abusive application, as well as the lack of an exception
clause, which would protect legitimate activities, such as those
of humanitarian organisations.
6. The Assembly recalls that the guarantee enshrined in Article 7
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (ETS No. 5, hereinafter “the Convention”) is an essential
element of the rule of law. It embodies, among others, the principle
that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege)
and the principle that criminal law must not be extensively construed
to the detriment of an accused. At the same time, according to the
European Court of Human Rights, Article 7 of the Convention cannot
be read as prohibiting the gradual clarification of the rules of
criminal liability through judicial interpretation from case to
case, provided that the resultant development is consistent with
the essence of the offence and could reasonably be foreseen. These
principles cannot be applied less stringently when it comes to the
prosecution and punishment of terrorist offences, even in the most
difficult of circumstances.
7. The Assembly welcomes the fact that the draft protocol’s preamble
explicitly reaffirms that all measures taken to prevent or suppress
terrorist offences shall be in accordance with relevant human rights
and fundamental freedoms, particularly those enshrined in the Convention,
as well as other obligations under international law, including,
where applicable, international humanitarian law. Nonetheless, it
regrets that this notion was not reflected in substantive provisions
of the draft protocol.
8. Recalling that combating terrorism and protecting Council
of Europe standards and values should be complementary objectives,
the Assembly reaffirms that for rights which are subject to restrictions
under the Convention, any limitation must be necessary in a democratic
society and be proportionate to the legitimate aim pursued, in line
with the case law of the European Court of Human Rights. It further
underlines that the right to freedom of expression is applicable
not only to “information” or “ideas” that are favourably received
or regarded as inoffensive or as a matter of indifference, but also
to those that offend, shock or disturb the State or any sector of
the population.
9. Referring to its
Resolution
2509 (2023) “Transnational repression as a growing threat
to the rule of law and human rights”, the Assembly is mindful of
the risk that anti-terrorism legislation may be misused in some member
States for political reasons. It further notes that the European
Union Agency for Fundamental Rights, in its 2021 report on the human
rights impact of Directive (EU) 2017/541, observed that the use
of counter-terrorism legislation and measures may be expanded in
some European Union member States to activities that include non-violent
movements, public protests and non-governmental organisations –
clearly not intended to be considered terroristic in nature. As
such, the Assembly believes that the legal definition of terrorism
should be as precise as possible to limit the risk of diverging
implementation at the national level and prevent arbitrary application.
10. In this context, the Assembly notes the concerns expressed
about the proposed wording of Article 1, paragraph 2.c, which includes “seriously destabilising
or destroying the fundamental political, constitutional, economic
or social structures of a country or an international organisation”
as one of the three possible aims defining a terrorist offence.
However, it takes note of the clarification provided in the draft
explanatory report (paragraph 36), that “legitimate activities that
are protected by human rights laws, such as freedom of religion and
conscience, freedom of expression or publication, should not be
subject to criminalisation” by virtue of the new provisions. The
Assembly considers that this explanation could be further strengthened
by adding the following sentence in paragraph 36 of the draft explanatory
report: “For example, the public expression of radical, polemic,
shocking or controversial views on sensitive political questions
does not fall within the scope of this amending protocol.”
11. The Assembly further considers that the inclusion of threats
to commit any of the acts listed in points a to i of Article 1, paragraph 1, increases
the risk of overbroad criminalisation and, in consequence, criminalisation
of the exercise of the right to freedom of expression. It therefore
recommends that the scope of Article 1, paragraph 1.j, be limited only to threats that
are both “serious” and “credible”.
12. Finally, the Assembly supports the proposal for the Warsaw
Convention to be supplemented with an explicit humanitarian exemption,
in line with the United Nations Security Council Resolution 2664
(2022). Considering the limited scope of the draft protocol, it
invites the Committee of Ministers to ask the Council of Europe
Committee on Counter-Terrorism to take this proposal into account
in its future work, in the context of a more comprehensive review
of the Warsaw Convention, including its Article 12 and other provisions.
13. The Assembly therefore recommends that the Committee of Ministers
make the following amendment to the draft protocol:
13.1 in Article 1, paragraph 1.j, replace the word “threatening”
with the words “a credible and serious threat”.
