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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.


 

III. Assessment under Article 52 of the Convention: scope of the request and of the replies received

1. Obligations of States Parties receiving a request under Article 52

11. On the basis of an analysis of Article 52 and of the past practice in this field in 2000, some general comments can be made concerning the nature and the scope of the obligations incumbent on the States Parties under this provision.2

12. The State has the obligation to provide truthful explanations. It appears clearly from the wording of Article 52 that this obligation is unconditional. The scope of the obligation is defined by Article 52 itself. The State must furnish the requested explanations about “the manner in which its internal law ensures the effective implementation of any of the provisions of this Convention”. The State has an obligation of result to provide explanations about the effective implementation of the Convention in its internal law: the State cannot, therefore, confine itself to providing explanations of a formal nature. On the contrary, bearing in mind also the obligation to execute treaty obligations in good faith (Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969), a State has the obligation to furnish precise and adequate explanations which make it possible to verify whether the Convention is actually implemented in its internal law. This necessarily implies that the State must furnish information of a sufficiently detailed nature about the national law and the practice of the national authorities, in particular the judicial authorities, and about their conformity with the Convention as interpreted in the case-law of the European Court of Human Rights (hereinafter “the Court”). The case-law has given a concrete expression to the rights and freedoms laid down in the Convention and has specified the conditions for an effective application of the rights guaranteed by the Convention: as the European Court of Human Rights has stated: “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (Airey judgment of 9 October 1979, Series A, No. 32, paragraph 24).

13. It goes without saying that under Article 52 States Parties are also bound to provide the explanations requested by the time-limit indicated in the request, provided that the time given is not unreasonably short in relation to the scope of the explanations sought.

2. Scope of the request

14. The request of 21 November 2005 (see Appendix I for the full text) contained a set of four specific questions on the manner in which the internal law of States Parties ensures the effective implementation of the provisions of the Convention and its additional Protocols, as interpreted by the European Court of Human Rights:

  • How their internal law ensures that acts by officials of foreign agencies within their jurisdiction are subject to adequate controls;
  • How their internal law ensures that adequate safeguards exist to prevent unacknowledged deprivation of liberty of any person within their jurisdiction, whether such deprivation of liberty is linked to an action or an omission directly attributable to the High Contracting Party or whether that Party has aided or assisted the agents of another State in conduct amounting to such deprivation of liberty, including aid or assistance in the transportation by aircraft or otherwise of persons so deprived of their liberty;
  • How their internal law provides an adequate response to any alleged infringements of Convention rights of individuals within their jurisdiction, notably in the context of deprivation of liberty, resulting from the conduct of officials of foreign agencies. In particular, how their internal law ensures the availability of effective investigations which are prompt, independent and 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 the context of the foregoing explanations, whether, in the period running from 1 January 2002 (or from the moment of entry in force of the Convention if it occurred on a later date) until the present, any public official or other person acting in an official capacity has been involved in any manner – whether by action or omission – in the unacknowledged deprivation of liberty of any individual, or transport of any individual while so deprived of their liberty, including where such deprivation of liberty may have occurred by or at the instigation of any foreign agency. Information was also to be provided on whether any official investigation was under way and/or on any completed investigation.

15. The request referred in a general way to the domestic implementation of the provisions of the Convention and its additional Protocols, as interpreted by the European Court of Human Rights, but also pointed to a number of provisions which are particularly relevant to the issue of unacknowledged deprivation of liberty (namely Articles 2, 3, 5, 6, 8, 13 of the Convention and Article 2 of Protocol No. 4 to the Convention) .

3. The replies received and their scope

Late replies

16. By the expiry of the time-limit on 21 February 2006 , no replies had been received from Belgium, Bosnia and Herzegovina, Georgia, Italy and San Marino, but these States Parties rapidly rectified this situation of non-compliance by replying within one to three days after the deadline. By 24 February 2006, replies from all 46 States Parties had been received.

Vague and/or very general reply not addressing any of the four questions

17. The reply received from Albania was of a very general nature and did not really answer any of the four questions. On 22 February 2006 , I therefore addressed a letter to the Albanian authorities asking for detailed answers to the four questions to be submitted without delay. I have not yet received a response. The initial reply received from this country has not been taken into account in this report.

Incomplete replies or replies lacking precision or detail

18. The explanations provided by the States Parties vary widely in scope and depth. Many replies do not address some of the questions in a sufficiently detailed manner or leave some important aspects of these questions unanswered. Further explanations from these States will therefore be necessary to supplement the replies furnished (see Appendix II, and section IV, 2.4 below).

Full replies

19. Some State Parties have given replies which cover the main aspects of the questions raised in the Secretary General’s request (see Appendix II, and section IV, 2.4 below). However, in respect of some of these replies, clarifications or information on specific points may nonetheless be necessary.


2 The following observations are drawn from a report prepared in 2000 by three eminent experts in international human rights law (Messrs. Tamas Ban, Frédéric Sudre and Pieter van Dijk). See their Consolidated report containing an analysis of the correspondence between the Secretary General of the Council of Europe and the Russian Federation under Article 52 of the European Convention on Human Rights, SG/Inf(2000)24 of 26 June 2000, paragraph 6.



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