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SG/Inf (2006) 5 28 February 2006

Report by the Secretary General on the use of his powers under Article 52 of the European Convention on Human Rights, in the light of reports suggesting that individuals, notably persons suspected of involvement in acts of terrorism, may have been arrested and detained, or transported while deprived of their liberty, by or at the instigation of foreign agencies, with the active or passive co-operation of States Parties to the Convention or by States Parties themselves at their own initiative, without such deprivation of liberty having been acknowledged

This report may also be referred to as (short title):

Secretary General's report under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies.


II. Background to the present request for explanations under Article 52 of the Convention

8. I decided to resort to my powers under Article 52 in the light of reports1 suggesting that individuals, notably persons suspected of involvement in acts of terrorism, may have been arrested and detained, or transported while deprived of their liberty, by or at the instigation of foreign agencies with the active or passive cooperation of States Parties to the Convention or by States Parties themselves on their own initiative without such deprivation of liberty having been acknowledged. This specific context of my inquiry under Article 52 was clearly indicated in the text of the request.

9. The purpose of my inquiry was to verify the manner in which the member States of the Council of Europe, all of which are Parties to the European Convention on Human Rights, ensure the effective implementation of and compliance with the provisions of the Convention in the specific context described in the previous paragraph. As was pointed out in my request, the safeguards contained in the Convention against arbitrary deprivation of liberty (in particular in Article 5) are of fundamental importance both in their own right and for the protection of other essential rights of the human being, notably the right to life (Article 2 of the Convention) and the absolute prohibition of torture or inhuman or degrading treatment or punishment (Article 3 of the Convention). The fundamental rights and freedoms enshrined in the Convention include positive obligations for the States Parties, meaning that governments are required to take action through protective measures to prevent violations from taking place and, where such violations have taken place, to conduct prompt and effective investigations capable of leading to the identification and punishment of those responsible for any illegal acts, including those responsible for aiding or assisting in the commission of such acts, and the payment of adequate compensation to victims. In my request, I recalled that unacknowledged deprivation of liberty raised serious questions concerning the effective implementation of and compliance with the Convention as regards the above-mentioned provisions as well as Article 6 (right to a fair trial), Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy) of the Convention as well as Article 2 of Protocol No. 4 to the Convention (freedom of movement).

10. The human rights obligations under the Convention also apply in the current context of the fight against terrorism. Both the Parliamentary Assembly and the Committee of Ministers have repeatedly made clear that this position is not only indisputable from a legal point of view but also constitutes a moral and political necessity. The Council of Europe Guidelines on Human Rights and the fight against terrorism, adopted by the Committee of Ministers on 11 July 2002, are an authoritative expression of this position. In the Preamble of this text, the Committee of Ministers recalls that it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law. I myself have on numerous occasions made public statements to remind States of this necessity.

 


1 See the references in the Information Memorandum II on Alleged secret detentions in Council of Europe member States, presented by rapporteur Mr Dick Marty to the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, doc. AS/Jur (2006) 03 rev of 22 January 2006.



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