On 25th June 2021, FRC member, Sibel Top, presents on the evolution and state of play of the political offence exception in the framework of the Council of Europe at the two-days Conference on extradition and surrender organised by Leiden University, Utrecht University and Maastricht University.
The protection granted to political offenders in European extradition law, including in the framework of the Council of Europe, is one that is considered to be long gone. This presentation sought to nuance that widespread belief by showing that, although this protection has indeed diminished to a point that its application is now merely theoretical, it is nevertheless still there. It thus sought to enquire how much of it is left.
To that purpose, it outlined the three main dynamics that led to the diminution of this protection all the way to its current status. The first one is the absence of a definition of what a political crime can be, coupled to an expanding definition of terrorism. Second, the fight against terrorism has led the Council of Europe to repeatedly call on its Contracting Parties to withdraw the reservations they had introduced to counterterrorism conventions, the most notable of which being the Convention on the Suppression of Terrorism whose main purpose is to depoliticise acts to make them extraditable. This, in turn, translated into reduced possibilities to enter reservations in subsequent conventions on counterterrorism, further reducing the possibilities to consider certain acts as political and not as terrorist. Finally, in light of these developments, the discrimination clause, preventing the use of tools of cooperation in criminal matters to persecute certain persons due to, among others, their political affiliation, has been presented as a safeguard against potential misuses of these tools. An adverse effect of this increasingly bolstered discrimination clause, however, has been an informal carte blanche to continue depoliticising acts in order to further the adoption and development of tools to combat terrorism.
The legal changes captured by these dynamics incidentally revealed some of the ideological transformations that lead to the adoption of these conventions. In this regard, all studied treaties on extradition and terrorism indicate a progressively lowering tolerance towards the use of violence to further political goals. Violence is now completely excluded from the scope of legitimate means of action due to an increasing level of trust in the democratic nature of the Contracting Parties, theoretically engaged in respecting fundamental rights and the rule of law. Similarly, the range of accepted targets of political crimes also shrank, gradually excluding people, the State and its symbols, its infrastructures, and eventually a certain system of value and of societal organisation.