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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.


IV. Analysis

1. Introduction

20. My assessment of the explanations given by our member States is based on three important considerations. First, the effective enjoyment of human rights guaranteed by the Convention must be guaranteed by law. Every Party to the Convention must have appropriate laws and regulations designed to provide effective safeguards and deterrence against abuse. Second, respect for the Convention imposes positive obligations to ensure respect for the guaranteed rights and freedoms, including preventive measures. In other words, the Convention may also be violated through an omission to act. Not knowing is not good enough. Third, the obligation of our member States to ensure respect for the rights protected by the Convention is linked to the exercise of their effective jurisdiction, which includes the airports on their territory and the airspace above it.

21. My inquiry under Article 52 was motivated by two main concerns, namely the possible existence of secret detention centres in States Parties and the involvement of officials of States Parties in the unacknowledged detention of individuals and their rendition by aircraft using airspace and airport facilities in States Parties.

2. “Rendition” or “extraordinary rendition” are not legally defined terms. They are normally understood to mean the apprehension and subsequent transfer of a person from one jurisdiction to another, outside the framework of legally defined procedures such as extradition, deportation, or transfer of sentenced persons and possibly with the risk of being subjected to torture or inhuman and degrading treatment. Such renditions involve multiple human rights violations, including transfer in breach of the principle of non-refoulement, as well as arbitrary arrest and incommunicado detention. The victim is placed in a situation of complete defencelessness with no judicial control or oversight by the European Committee for the Prevention of Torture (CPT) leaving the door open for the use of torture and other forms of ill-treatment. According to the Court, the unacknowledged detention of an individual is a complete negation of the Convention’s guarantees against arbitrary deprivation of liberty and a most grave violation of Article 5 (right to liberty and security).3 The arbitrary arrest, detention and transfer of an individual would also affect the rights under Articles 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 2 of Protocol No. 4 (freedom of movement), as well as, depending on the circumstances, Article 2 (right to life) and Article 3 (prohibition of torture).4

23. The activities of foreign agencies cannot be attributed directly to States Parties. Their responsibility may nevertheless be engaged on account of either their duty to refrain from aid or assistance in the commission of wrongful conduct, acquiescence and connivance in such conduct, or, more generally, their positive obligations under the Convention.5 In accordance with the generally recognised rules on State responsibility, States may be held responsible of aiding or assisting another State in the commission of an internationally wrongful act.6 There can be little doubt that aid and assistance by agents of a State Party in the commission of human rights abuses by agents of another State acting within the former’s jurisdiction would constitute a violation of the Convention. Even acquiescence and connivance of the authorities in the acts of foreign agents affecting Convention rights might engage the State Party’s responsibility under the Convention. Of course, any such vicarious responsibility presupposes that the authorities of States Parties had knowledge of the said activities.

24. In this context, it should be noted that there have been consistent press reports about prisoner transfers by the CIA since at least March 2005.7 Human Rights Watch published a well-documented briefing paper on “ghost detainees” in October 2004.8 In April 2005, the Parliamentary Assembly adopted Resolution 1433 (2005) on the lawfulness of detentions by the United States in Guantánamo Bay in which it called on member States to ensure that their territory and facilities are not used in connection with practices of secret detention or rendition in possible violation of international human rights law.

25. Even ultra vires action by national authorities or individual conduct by members of national security services not covered by superior orders would engage a State Party’s responsibility. Under the Convention a State’s authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will and cannot shelter behind their inability to ensure that it is respected.9

26. Where a State had no knowledge of illegal activities, it may still incur responsibility under the Convention on account of its failure to protect individuals or where subsequent information comes to light to investigate violations. In addition to their duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, States are required to take appropriate steps to ensure respect for those rights and freedoms within their territory. The Court found that such positive obligations remain even where the exercise of the authority of the State is limited in part of its territory, which means that it has a duty to take all the appropriate measures which are within its power.10 For positive obligations to arise in the context of human rights abuses by private persons, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid this risk.11

27. It can be argued that at least the same standards should be applied as regards human rights abuses by foreign officials acting on the territory of a State Party. Under international law, as several States Parties indicate in their explanations, a State may not exercise authority on the territory of another State without the latter’s consent. Unless duly authorised, such extra-territorial exercise of authority would amount to a violation of the sovereignty of the host State and would therefore be contrary to international law. This violation of international law is a relevant factor to be taken into account in the context of the Convention, for example when judging the lawfulness of a deprivation of liberty under Article 5.12 Under Article 1 of the Convention, every State Party has a general duty to protect all individuals under its jurisdiction, regardless of nationality or status as a legal resident, from unlawful interferences with their rights and freedoms under the Convention. In certain circumstances, in particular if there are reasonable grounds to believe that there is a danger that foreign agents will abuse their powers, obligations to seek information from the responsible government may arise in order to secure to everyone the rights and freedoms guaranteed under the Convention. At least following consistent reports in the media about suspicious activities within their jurisdictions, States Parties cannot turn a blind eye and ignore the potential threat to terrorism suspects.

28. As regards the alleged secret places of detention, State responsibility under the Convention would follow directly from territorial sovereignty. States Parties are under an obligation to ensure that their territory is not used for activities which are incompatible with the guarantees of the Convention. Setting up secret detention facilities necessarily requires some form of authorisation, permission or, at least, acquiescence by the authorities of the territorial State. Even if the foreign agencies had not provided full information on their activities initially, the territorial State would be under an obligation to ensure, with all the legal and diplomatic means available to it, that activities by foreign agencies on its soil comply with the Convention.13

29. It would appear that positive obligations, to some degree at least, are capable of extending to military bases, although these are only to a very limited extent under the jurisdiction of the receiving State. The use of such bases for activities of foreign intelligence agencies in violation of internationally recognised human rights standards would not be covered by the applicable NATO or other multilateral or bilateral agreements. Since the receiving State’s initial consent under these agreements would not cover such activities, they would simply constitute an unlawful exercise of jurisdiction by the sending State. Under the principles of State responsibility, the receiving State would therefore be entitled to request the immediate cessation of such activities, reparation for any damages and guarantees against non-repetition.

30. Finally, States Parties are under an obligation to conduct prompt and effective investigations into any arguable claim that a person has been taken into custody by foreign agencies operating in its territory and has not been seen since.14 The Court (and other relevant human rights bodies of the Council of Europe and the United Nations) have identified a number of procedural and substantial requirements for investigations which must be capable of leading to the identification and punishment of those responsible for any illegal acts. Key principles include, inter alia:

  • carrying out investigations which are prompt, effective and not merely perfunctory and which take into consideration not only the actions of State agents but also the surrounding circumstances;
  • ensuring the independence and impartiality of investigators from those State agents allegedly involved in the cases of killings or serious abuses under investigation;
  • protecting witnesses from threats and intimidation;
  • ensuring where possible that investigations are open to the general public or subject to public scrutiny;
  • minimising the use of certain measures designed to protect the identity of members of the security forces (such as testimony from behind screens, no badge numbers on uniforms and the wearing of balaclavas);
  • applying an appropriate burden of proof (e.g. where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and deaths occurring during that detention);
  • ensuring independent judicial review in cases where it is decided not to initiate criminal prosecution, or providing other guarantees;
  • where wrongdoings are found, imposing adequate criminal or disciplinary sanctions which have a dissuasive effect and meet the requirement of proportionality and which cannot be converted, e.g. into fines, or suspended.

2. Replies to the four questions

31. The replies to the four questions are analysed in sub-sections 2.1. - 2.4. below. The focus of this analysis is on thematic issues arising from each question and the replies thereto, with some noteworthy (non-exhaustive) examples being drawn from individual replies by States Parties

2.1. Question 1 - Adequate controls over acts of officials of foreign agencies within the State's jurisdiction

i) Police and judicial cooperation in criminal matters

32. A number of replies provide relatively detailed information about existing procedures on police and judicial co-operation in criminal matters between States. Within the framework of EU law, bilateral or multilateral agreements, some countries allow the presence of foreign liaison or police officers on their territory. They are usually acting under the control of national police authorities and are not entitled to take decisions on deprivation of liberty. The Irish-US extradition agreement of 2001 exceptionally permits the detention of prisoners by officials of the US as they pass through Ireland . However, any such transit requires the explicit consent of Ireland .

33. Foreign investigating officers are sometimes allowed to operate on the territory of another State in the specific context of cross-border pursuits. All those activities are carried out within a specific regulatory framework of existing arrangements of police and judicial co-operation. According to the information provided, the existing controls appear to be adequate. There are no indications of particular problems of compatibility with the Convention.

34. In the Netherlands , foreign liaison officers are instructed by the National Police Services Agency regarding the provisions of Dutch law relevant to their work, including the Convention, as well as the consequences that non-compliance could have. Regulations on operations of foreign police liaison officers also exist in Belgium.

ii) Security Services

35. Only a few replies contain precise information about the activities of foreign intelligence services and control mechanisms. Officers of foreign security services are usually present for purposes of co-operation with the host country. It is normally required that their activities must be compatible with international law and the national legal order. Hungary clearly indicates that nothing authorises the national security services to enter into any type of co-operation with foreign secret services that would transgress the constitutional limitations, including the respect for fundamental human rights, imposed upon their activities.

36. According to the explanations provided, foreign agents are not allowed to take any coercive measures such as arrest or detention. Covert intelligence gathering operations usually require a special authorisation by the competent national authorities. Italy indicates that there is no official agreement according to which a foreign intelligence agency would be obliged to communicate the presence in Italy of their staff or accredit such staff. Switzerland refers to accreditation and mentions that such staff is informed upon arrival of the legal rules governing their activities. Lithuania indicates that information must be made available about the activities of foreign special services on the national territory.

7. Some of the States which have given more precise information on this subject indicate that activities of foreign agents are subject to control by a national authority, usually the national security service or a branch of it. However, only a few States give more detailed explanations about the nature and scope of such control. In Hungary, the 1995 Act on the National Security Services creates a comprehensive legal framework for democratic civilian control, including Parliamentary oversight, over the activities of security services, both national and foreign. The competent authorities are instructed by law to detect any endeavours and activities of foreign secret services interfering with or threatening the sovereignty or the political, economic, or other important interests of Hungary. Germany indicates that cooperation with foreign agencies is closely monitored by the Federal Office for the Protection of the Constitution. The Russian Federation indicates that its Federal Security Service is entrusted with monitoring the activities of foreign special services. The Czech Republic and the Netherlands indicate that cooperation of domestic intelligence services with foreign counterparts is subject to special provisions.

38. The Czech Republic , Iceland and, to some extent Slovakia15, state that there are no regulations dealing specifically with control over the activities of foreign secret services. Most other replies do not say so explicitly, but this may well be a common situation in many member States. This absence of a regulatory framework stands in sharp contrast to the rather detailed regulations that exist regarding the activities of foreign police officers on their territory (see under i) above).

39. Austria , Belgium , the Czech Republic , Estonia , Hungary , the Netherlands , Poland and Switzerland mention the existence of Parliamentary oversight over the activities of intelligence services. Where it exists, such oversight appears to be restricted to the activities of national secret services. Usually there are special procedures to guarantee the confidentiality of classified information. In Hungary, the National Assembly exercises parliamentary control of the national security services through its National Security Committee. This Committee may conduct inquiries about complaints implying the illegal activities of national security services, in the course of which it may have access to relevant documents kept in the registry of the national security services and may hear staff members of the security services. Further to its investigation, it may call upon the competent Minister to take necessary measures. The complainant is informed about the findings of the Committee.

40. In addition to parliamentary oversight, Lithuania and Sweden refer to complaints procedures involving the national ombudspersons, who are competent to investigate any abuse of official authority or violation of human rights by the public authorities. It is not clear whether the competence of ombudspersons in these and other States extends to the secret services. The Netherlands have created a supervisory commission for the intelligence and security services. This commission is charged with monitoring the lawfulness of the security services’ activities and with informing the relevant ministers about its findings. It has access to all the information processed by the security services. Reports of the commission are sent to the parliament, which deals with the secret parts of these reports confidentially. In Belgium, a similar body exists which also handles complaints from private individuals or public officials. In the latter case, anonymity of the official can be guaranteed.

41. With a few exceptions, the information about existing controls over the activities of secret services reveals a lack of democratic oversight, which has already been deplored by the Parliamentary Assembly.16 The functioning of these services should be based on clear and appropriate legislation providing for adequate safeguards against abuse, parliamentary oversight and, where human rights are affected, judicial control. Their activities should be clearly separated from the activities of police and other law enforcement authorities. As the explanations of some States Parties show, ways and means can be found to strike a balance between accountability and the necessary confidentiality of classified information. While stronger supervision over the activities of national secret services is necessary, this is even more the case in respect of foreign secret services.

iii) Military personnel

42. A number of States Parties indicate the presence of foreign military personnel on the basis of NATO, bilateral or multilateral agreements. Under the agreements, military forces of the sending State are obliged to respect the law of the receiving State. Authorities of the sending State usually exercise exclusive jurisdiction over persons subject to its military law. The explanations given omit any indication of whether, in addition to the (military) authorities of the sending State, authorities of the receiving State exercise any control or supervision over their activities.

iv) Flights allegedly used for rendition purposes

43. I regret that some replies did not contain information about the specific issue of flights allegedly used for rendition purposes. This is all the more regrettable as well-documented allegations about such flights were among the reasons which prompted me to use my powers under Article 52 (see paragraphs 8 and 21 above). All those explanations which contain information on this subject draw a distinction between State (military and non-military) and civil aircraft.

44. The Convention on International and Civil Aviation of 7 December 1944 (“Chicago Convention”), which has been ratified by 189 States worldwide provides the legal framework for international air traffic in Europe . Under the Convention, all civil aircraft of a State Party, including unscheduled flights, have a right to make flights into or transit non-stop across the territory of another Party, including the right to land for technical purposes such as refuelling or maintenance. Unlike State aircraft, civil aircraft do not enjoy immunity from search or seizure.17 Indeed, controls on landed aircraft are routinely carried out. The purpose of such controls appears to be mainly to check compliance with customs and security regulations.

45. In the absence of any general or permanent clearances for specific types of aircraft (see paragraph 55 below), authorisation for overflight by State aircraft is obtained on a case-by-case basis through the competent military or civil authorities. Under Irish law, both military and non-military State aircraft must seek permission to overfly or land in Irish territory if immunities are to apply. It is usually required that the application for permission contains a statement of the purpose of the flight, the aircraft used, its route and final destination. However, States applying for overflight permissions are not systematically requested to provide passenger lists or information about cargo, even though this would be possible.

46. Some States mention flights used to repatriate illegal aliens. Such flights would qualify as State flights, and their transit through the airspace of another country would therefore require a special permission, unless general permissions have been granted unilaterally or on the basis of bilateral or multilateral arrangements.

47. Austria indicates that it has established penalties if flights by State aircraft are not declared as such, but are operated as civil aircraft according to the ICAO rules.

48. In addition, air traffic control clearance is required for all flights. In accordance with ICAO regulations, such clearance is given on the basis of the aircraft’s flight plan, which contains general information on the aircraft, its route and the number of persons on board. It is not necessary to indicate the cargo or to provide a list of passengers. The type of flight is indicated according to standardised categories (scheduled air service, non-scheduled air transport operations, general aviation, military or other).

49. Finland indicates that its aviation authorities are merely informed of the registration number and destination of every aircraft entering Finnish airspace. Norway declares that in cases where civil aircraft must apply for permission (e.g. where they take on new passengers during an intermediate landing), the application procedures are routine and not detailed enough to reveal cargo or passengers being carried in violation of Norwegian legislation. According to the explanations provided by Iceland, customs aviation authorities can request information from all aircraft concerning the passengers they are carrying.

50. Granting overflight clearances or rights for State aircraft is a sovereign prerogative of each State. Permission may be granted subject to a waiver of immunity (Ireland) or under other conditions, such as to ensure compliance with internationally recognised human rights standards on board (Norway). However, it seems from the explanations received that most States have so far not felt the necessity to resort to such restrictions.

51. Some member States indicate that measures available for the control of aircraft which merely transit their airspace are limited (for instance Austria , Finland , Ireland , Norway ). If there are serious grounds to believe that criminal offences are committed on board transiting aircraft, the competent authorities may order an aircraft to land. The Chicago Convention recognises the right to require the landing of an aircraft if there are reasonable grounds to conclude that it is being used for purposes inconsistent with this Convention.18 This remains however a rather theoretical possibility since these authorities usually do not have any detailed information about the purpose of the flight or the passengers on board.

52. Iceland declares that its legislation could in practice provide for the possibility to establish a systematic supervision to collect information on the passengers in all aircraft landing in Icelandic airports. However, according to the explanations provided, the need to do so has not been felt as yet. Indeed, no State appears to have established any kind of procedure in order to assess whether civil aircraft are used for purposes that would be incompatible with internationally recognised human rights standards.

53. Luxembourg mentions that, since 7 February 2006, air traffic control services are required to inform the competent minister immediately in case a flight plan is received concerning an aircraft mentioned on the list provided by the Parliamentary Assembly. As necessary, an inspection will be carried out on the aircraft.

54. The explanations provided on the specific point of controls over aircraft allegedly used for rendition purposes show that existing procedures do not provide adequate safeguards against abuse. The existing standardised procedures in the case of civil aircraft and the immunity in the case of State aircraft mean that it is virtually impossible for States to assess with certainty whether aircraft transiting through their airspace or even using their airport facilities are used for purposes incompatible with the European Convention on Human Rights and other internationally recognised human rights standards.

55. It is disconcerting to note that no explanations were given about “blanket” or “automatic” overflight clearances or rights upon request granted by States either unilaterally or under bilateral or multilateral agreements, including within the framework of the EU or NATO. Such information is, at least partially, in the public domain.19 For the purposes of my inquiry it would be important to know the precise nature and scope of such arrangements and whether they contain adequate safeguards against abuse.

 

2.2. Question 2 - Adequate safeguards to prevent unacknowledged deprivation of liberty

56. The inviolability of personal liberty is guaranteed in many national constitutions. Unacknowledged deprivation of liberty would constitute a crime everywhere in Europe . All member States have legislation establishing unlawful detention, false imprisonment or kidnapping as criminal offences. Most States also indicate expressly that such acts also constitute offences when committed by public officials. In some countries this would even constitute a qualified form of the normal offence. According to the explanations given by most of the States, whoever aids or assists in such deprivation of liberty would likewise be punishable. The surrender of a person to a foreign power has only exceptionally been established as a separate, specific offence (e.g. in Austria). Andorra qualifies the unacknowledged deprivation of liberty and transfer to another State as a “crime against humanity”. In several countries, the secret transportation of unlawfully detained persons would probably qualify as an abduction.

57. The existing criminal sanctions appear to be applicable to the agents of foreign States in the same manner as to nationals, subject to privileges and immunities which the former may enjoy under international law (see paragraphs 68-69 and 71 below).

58. In France, a public official who abstains from ending or from obtaining from the relevant authority the end of an illegal detention of which he or she has become aware is liable to a sanction of three years imprisonment and a fine of 45 000 euros. There is even a sanction if the public agent abstains from acting when he or she was not aware of the illegality of the deprivation of freedom in cases where such illegality was alleged and proved afterwards. In Belgium and Hungary, public officials who, in their functions, become aware of a crime or offence must immediately inform the prosecutor of the tribunal where the crime or offence was committed. A similar duty exists in Italy with special procedures to be followed by intelligence officers. In Belgium and Luxembourg, there exists a general duty for anyone to report an irregular detention to the authorities. Switzerland generally states that such crimes may also be committed by omission.

59. Ireland declares that it is not lawful for the Minister of State to consent to the transit of a prisoner through Irish territory other than in the framework of the Extradition Act 1965 or of the Council of Europe Convention on Transfer of Sentenced Persons 1983. The Irish government clearly stated that, in order to stay in conformity with the European Convention on Human Rights Act 2003, no minister can lawfully consent to the transit through Irish territory of a prisoner where he or she knows, or has substantial grounds for believing that there is a real risk of the prisoner being tortured or subjected to inhuman or degrading treatment or punishment.

60. Hungary indicates that coercive measures are strictly regulated and preclude the possibility of any foreign authority depriving any individual of his or her liberty on the territory of the Republic of Hungary , as well as any authorities of the Republic of Hungary aiding or assisting the agents of another state in such illegal conduct. According to Slovakia , any transport through its territory for the purposes of criminal prosecution or execution of judgments would require a permission by the Ministry of Justice. Switzerland indicates that transit by air via Switzerland of persons unlawfully deprived of their liberty would be considered as a violation of Swiss sovereignty and contrary to Swiss as well as International law. The Federal Council confirmed this position in a Parliamentary inquiry.

61. Some States recall the importance of monitoring by the European Committee for the Prevention of Torture (CPT) and comparable national bodies and the safeguards which they offer against unacknowledged deprivations of liberty. In addition, some countries refer to the existence of custody records as another safeguard.

62. The existence of a legislative framework designed to provide effective deterrence against human rights violations is not sufficient in itself. The competent police and judicial authorities must also be entitled to exercise their powers and jurisdiction over those who are responsible. The absence of criminal jurisdiction or the rules on State immunity may constitute obstacles to the effective exercise of supervisory and enforcement powers.

63. In this context, I regret that many explanations do not provide clear answers to such vital questions as to whether and to what extent national authorities may exercise jurisdiction over foreign military personnel or transiting aircraft.

64. Under the applicable bilateral and multilateral status of forces agreements, authorities of the sending State usually exercise exclusive jurisdiction over persons subject to its military law. The criminal or civil courts of the receiving State are thus in principle prevented from exercising jurisdiction. The question of whether and to what extent the courts of the receiving State may exercise concurrent jurisdiction is only exceptionally addressed. Germany declares that its police may only exercise authority to the extent that the public order and safety of the Federal Republic are jeopardised or violated. Romania indicates that waivers of jurisdiction by the receiving State under the Status of Forces Agreements (SOFA) are subject to recall when the Romanian authorities consider that the case is “of particular importance”.

65. Under international law, States are not prevented from exercising their criminal jurisdiction over foreign aircraft. Under Article 4 of the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 14 September 1963 (“Tokyo Convention”),20 a State which is not the State of registration may interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board in the following exceptional cases:

    a) the offence has effect on the territory of such State;
    b) the offence has been committed by or against a national or permanent resident of such State;
    c) the offence is against the security of such State;
    d) the offence consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in force in such State;
    e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.

66. A number of States mention expressly that they exercise jurisdiction over foreign civil and commercial aircraft. French courts are competent for foreign aircraft when they land in France after the crime, when the offence has been committed on board during the flight, when the offender or the victim is of French nationality or when the aircraft (excluding staff) was rented by a person residing in France. The United Kingdom indicates that Scottish criminal courts have jurisdiction, at common law, over aircraft within or flying over Scotland.

67. Norway declares that its authorities would be obliged to prevent any acts which would constitute human rights violations. Iceland indicates that if an inspection of aircraft is performed and grounds are established that a criminal act has been committed on board, the police would have full authority to initiate an investigation.

68. Several States declare that principles of immunity recognised under public international law would be an obstacle to law enforcement measures by their authorities. The explanations refer in particular to the Vienna Conventions on Diplomatic and Consular Relations. According to Spain, these treaties would apply to foreign agents only if they are duly accredited as diplomatic or consular agents. Since foreign agents act in official capacity, their action might benefit from immunity ratione materiae. This immunity is based on the idea that the individual official is not to be held individually responsible for acts which, in effect, are those of the State. It operates as jurisdictional or procedural bar and prevents courts from indirectly exercising control over acts of the foreign State through proceedings against the official who carried out the act. The explanations also acknowledge that State aircraft used for official purposes would be subject to the rules on State immunity and thus beyond the reach of criminal jurisdiction of the authorities of the State of transit.

69. Immunity is, however, not absolute. The United Kingdom declares that insofar as any official of a foreign agency may be entitled to immunity from legal process, a waiver of immunity can be sought, and if the required co-operation is not forthcoming, the official may be required to leave the UK. Azerbaijan and Latvia refer more generally to the settlement of questions of criminal liability by diplomatic means. According to the explanation provided by Norway, certain serious violations of international law obligations, such as gross human rights violations, may be exempt from immunity. If Norway were to receive clear indications that persons on board a State aircraft could be subject to gross human rights violations, the Norwegian authorities would have to contact the authorities responsible for the aircraft to obtain assurances that such actions will not take place. If such assurances are not provided, there might be consequences for the immunity of the aircraft in question. There could also conceivably be cases where such assurances are not, for various reasons, considered sufficient.

0. From the explanations provided, it appears that the existing legislative framework in the member States offers, by and large, important safeguards for the protection of the right to liberty and security against interferences by national authorities. However, the existing rules on jurisdiction and State immunity seem to create obstacles for effective law enforcement regarding actions by foreign agents. It could be argued that the States Parties to the Convention are under an obligation to establish criminal jurisdiction to the extent that this is required to punish offences which constitute serious human rights violations, even if such “violations” are committed by agents of a State not bound by the European Convention on Human Rights. The European Court of Human Rights has found in several cases that the Convention requires efficient criminal-law provisions in order to prevent and sanction serious human rights abuses, such as rape, sexual assault, or domestic slavery.21 The Court has also, albeit in the context of civil claims, underlined the importance of access to court. It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 paragraph 1, namely that civil claims must be capable of being submitted to a judge for adjudication, if States could remove from the jurisdiction of the courts a whole range of civil claims or confer immunities on categories of persons.22

71. There appears to be a need to establish more precisely the scope and conditions of human rights exceptions to State immunity. So far, an exception has been established only for acts of torture, due to the jus cogens nature of the prohibition, which was recognised by international and national courts, in particular the International Criminal Tribunal for the former Yugoslavia,23 the European Court of Human Rights24 and the British House of Lords.25 The same rationale should be applied to other serious human rights violations, such as enforced disappearances. Under the Statute of the International Criminal Court, the systematic practice of enforced disappearances qualifies as a crime against humanity.26 The issue of human rights exceptions to State immunity could be an area for standard-setting by the Council of Europe.

2.3. Question 3 - Adequate provisions to deal with alleged infringements of Convention rights

72. The explanations provided describe in some detail the various procedures to ensure an adequate response to any real or potential infringements of the rights and freedoms guaranteed by the Convention. These procedures are not all necessarily of a judicial character. Ombudspersons or similar institutions, to which various member States refer, play an important role in this context.

73. From the explanations given, all the police and criminal authorities have an obligation to investigate any suspected cases of unacknowledged deprivations of liberty of which they become aware. In many States Parties, the authorities have a duty to prosecute in such cases, subject to some usually narrowly defined exceptions. In States where this is not the case, the discretion of prosecuting authorities appears to be limited, and victims are usually granted a right of appeal.

74. There are of course important differences between national systems regarding the organisation and functioning of their police and judicial systems. However, on the whole, the judicial systems of our member States appear to make provision for an independent and impartial official investigation procedure which is in principle capable of satisfying certain minimum standards as to effectiveness established by the Convention. Subject to the rules of jurisdiction and immunity highlighted above, the existing procedures should ensure that criminal penalties are applied to all those who commit or participate in the commission of criminal offences, irrespective of nationality or status.

75. Switzerland declares that any victim of a criminal offence committed in this country, irrespective of nationality, is entitled to request assistance from a counselling centre (centre de consultation), protection and defence during possible criminal proceedings and, depending on the circumstances, obtain compensation and moral damages. To benefit from this assistance, the perpetrator need not be known. Sweden indicates that agents of another State can be held liable under general principles of international law and ordered to pay compensation.

76. National law in our member States generally provides for the payment of adequate compensation for any personal injury or loss or damage caused directly or indirectly by acts which constitute the offence. Many countries have adopted special legislation concerning unlawful deprivation of liberty. Compensation claims may be brought in either civil or criminal proceedings.

77. I regret that many replies do not explain in more detail the conditions under which compensation is provided. Taking into account the background of my inquiry, it would have been useful to indicate whether the existing procedures would also be open to aliens who are not legal residents in the country concerned, but are merely in transit against their will, and whether compensation can be awarded in the event that agents of another State are liable for the damages caused.

 

2.4. Question 4 - Any involvement of public officials / any official investigations

i) How have States Parties replied?

78. The fourth question raised in my request consisted of two parts. An indication of how States Parties have replied to them is given below under a) and b) respectively (for further details, see Appendix III).

a) Have any public officials been involved in the unacknowledged deprivation of liberty of any individual, or transport of any individual while so deprived of their liberty?

79. The question as put in the request was whether, in the period running from 1 January 2002 (or from the entry into force of the Convention if that occurred on a later date) until the present, any public official or other person acting in an official capacity had 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.

80. Most States Parties give a clear and complete reply to the question as formulated:

Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Moldova, Netherlands, Portugal, Romania, [the Russian Federation – see paragraph 82 below] San Marino, Sweden, Turkey, United Kingdom.

All these replies state that there has been no involvement of the kind mentioned in question 4, at least not to the knowledge of the authorities.

81. Some States Parties give an incomplete reply:

- Some States give a qualified or partial reply, a reply to a question narrower than the one put, or only an indirect reply:

Andorra (no explicit reply on transport), Croatia (no explicit reply on transport), Estonia (reply limited to the conduct of law enforcement agencies), Italy (partial reply limited to involvement of national officials in “flying prisons”), Norway (no direct reply but information on investigations into suspect flights through diplomatic channels), Poland (the reply on secret detentions does not cover the full period mentioned in the request; no reply on transport), Serbia and Montenegro (reply limited to participation in arrest under influence of foreign agencies; no reply as regards transport), Slovakia (no reply as regards transport; reply not totally clear regarding deprivation of liberty), Spain (no direct reply, but completed and ongoing criminal investigations), Switzerland (no direct reply, but completed and ongoing criminal investigations).

To the extent that a reply is given and within those limits, most of these replies indicate that there has been no involvement, at least not to the knowledge of the authorities. Three States Parties did not give a direct reply ( Norway , Spain , Switzerland ). However, this may be explained by the fact that, according to the information they provided, certain investigations are under way (Spain, Switzerland) or appear to be continuing ( Norway ).

- Some replies are (apparently) based on information held by only some authorities:

Andorra (to the extent that a reply has been given, this appears to be based on information of the judicial authorities only), Austria (reports from the public prosecutors only), Greece (police activities only), Latvia (on the basis of information held by the Ministry of Foreign Affairs only), Monaco (Directorate of Judicial Services only), Serbia and Montenegro (to the extent that a reply has been given, this is based on information held by the Ministry of Justice of Montenegro only), Slovenia (police information only), Ukraine (information from the Ministry of Justice only).

These replies all state that there has been no involvement, at least not to the knowledge of those authorities which are mentioned in the reply.

82. One State Party gives a reply which is not fully clear:

Russian Federation (the reply should probably be interpreted as stating that according to the information available to the competent authorities, there has been no involvement of the kind mentioned in question 4. However, confirmation that this reading is correct would be useful).

83. Some States Parties have not replied at all:

Bosnia and Herzegovina , Georgia , Lithuania , “the former Yugoslav Republic of Macedonia .

b) Are there any official investigations27 completed or under way?

84. Some States indicate that official investigations of various kinds:

- are under way:

Germany (criminal investigations in two cases), Greece (criminal case concerning alleged abduction), Romania (parliamentary investigation), Spain (criminal investigations in two cases), Switzerland (criminal investigation), United Kingdom (complaint transmitted to the police);

- have been completed:

Austria (one particular investigation into a specific flight), Belgium (inquiries by the authorities, but the matter is kept under review), Cyprus (on unacknowledged detentions, inquiry launched by the authorities following Art. 52 request), the Czech Republic (inquiry following the Art. 52 request), Denmark (reference to information which has been provided to parliament), Finland (Government internal inquiries), Hungary (Government internal inquiry), Ireland (Government internal inquiry, preliminary criminal investigations into suspect flights), Luxembourg (investigations into suspect flights as listed by the Parliamentary Assembly), Malta (Government internal investigations following Art. 52 request), the Netherlands (Government replies to questions put by parliament on suspect flights), Norway (investigations into secret flights through diplomatic channels; not fully clear whether these have been completed), Poland (investigations regarding secret detention centres), Portugal (Government internal inquiry), Romania (governmental investigations), Slovakia (consultation within the Government), Spain (criminal investigation), Sweden (searches of records of suspect flights by airport and civil aviation authorities), Switzerland (parliamentary investigation, Federal Office of Civil Aviation investigation).

85. Some States indicate that no official investigations are under way or completed:

Andorra , Armenia , Bulgaria , Estonia , Iceland , Latvia , Moldova , San Marino , Slovenia (as regards police investigations only), Ukraine .

86. Some States provide no reply to this question:

Azerbaijan, France, Georgia, Italy, Liechtenstein, Lithuania, Monaco, Russian Federation, Serbia and Montenegro, “the former Yugoslav Republic of Macedonia ”, Turkey .

a. One State gives a very incomplete reply to this question:

Bosnia and Herzegovina (mere reference to an information request made to various authorities).

 

ii) Comments

 

87. The answers received call for an explanation and some comments.

88. In my request I used the term “official investigations” in a broad sense, encompassing not only criminal investigations into specific cases but also inquiries by other national authorities (e.g. Government, Parliament) irrespective of whether they are of a general nature or dealing with specific cases, and of whether they are internal or public. When analysing the replies, I have therefore also taken into account inquiries made within the Government in order to respond to my request under Article 52. However, the results of my analysis of the replies on this point should be read with caution, since in some replies the notion of “official investigations” seems to have been interpreted in a narrow way, as denoting criminal investigations only (i.e. excluding governmental, parliamentary or other inquiries). The wording of the request may not have been sufficiently precise on this point.

89. I am concerned that some States Parties have not replied at all to the question or have given an incomplete reply. This is all the more unacceptable in that, apart from the fact that all States Parties have the obligation under Article 52 to give precise and truthful explanations (see paragraph 12 above), the subject of the fourth question continues to give rise to considerable public debate in the member States and beyond. It is definitely in the public interest that full clarification is obtained in response to the allegations which have been made about involvement of member States of the Council of Europe in secret detention centres and “extraordinary rendition” flights. It cannot be said that the States Parties which have not given a clear and full reply have necessarily acted in bad faith but, at the very least, they have not given sufficient attention to this element of the Article 52 request.

Comparison of replies with the Marty Memorandum

90. This state of affairs is particularly serious as regards those States which have been cited in the allegations referred to in the Information memorandum presented by Mr Dick Marty in January and have nevertheless failed to provide a full and clear reply. Poland only provides a very incomplete reply which cannot be considered as an adequate response or sufficient to put an end to the controversy. “ the former Yugoslav Republic of Macedonia ” does not give any reply at all to the questions about involvement and official investigations. Bosnia and Herzegovina does not give a reply about involvement and has only provided a very incomplete reply to the question about official investigations. In the latter country, there is however a well-documented case of abduction of six persons, notwithstanding a ruling by the Federal Supreme Court ordering their release.

91. Giving only a partial reply to the question about involvement and not replying at all to the question about official investigations, Italy has failed to provide information about the well-known ongoing criminal investigation into the alleged abduction of Abu Omar by CIA agents in Italy, in contrast to Germany and Switzerland which provide information about ongoing investigations by their own authorities.

92. The replies of two other countries ( Bulgaria , Ukraine ) mentioned in the Marty Memorandum indicate that no official investigations have been undertaken. However, it may be that these countries have understood the term “official investigation “ as referring only to criminal investigations. It would also be important to receive information from these countries about whether investigations of another kind (e.g. governmental or parliamentary inquiries) are under way or have been completed. The same point also applies to Greece , notably as regards any inquiries into the alleged existence of a secret prison at Souda naval base in Crete (see the Marty Information Memorandum, AS/Jur(2006) 03 rev).

Cooperation between States in investigations under way

93. Finally, as regards official investigations, it is clear that the member States of the Council of Europe should make every effort to assist each other in their endeavours to bring factual information to light. The replies to question 4 provide some examples of such cooperation in the context of ongoing investigations. However, according to the reply given by Germany, “the former Yugoslav Republic of Macedonia” has yet to respond to the request made in 2005 by the Federal Government of Germany for legal assistance in the context of a criminal investigation by the Munich 1 public prosecution office into a kidnapping case.

 


3 Kurt v. Turkey , judgment of 25 May 1998 , §§ 123-124.

4 It may also be noted that on the basis of the information available to him, the UN Special Rapporteur on torture has taken the view that the United States practice of “extraordinary rendition” constitutes a violation of Article 3 of the UN Convention against Torture and Article 7 of the International Covenant on Civil and Political Rights (prohibition of torture). See UN Human Rights Rapporteurs’ report on the situation of detainees at Guantánamo Bay , UN Doc. Future E/CN.4/2006/120 of 15 February 2006 , § 55.

5 See, mutatis mutandis, Ilascu and Others v. Moldova and the Russian Federation, judgment of 8 July 2004, § 322.

6 See Article 16 of the draft Convention on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission.

7 See Controversy Continues Regarding Detainees Held by the CIA, Renditions to Other Countries, 99 American Journal of International Law 706 (2005) with references to press reports in the US .

8 “The United States’ ‘Disappeared’ – The CIA’s Long-Term ‘Ghost Detainees’”, Human Rights Watch Briefing Paper, October 2004, available at < http://www.hrw.org/backgrounder/usa/us1004/>.

9Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64, § 159; see also Article 7 of the International Law Commission’s Draft Articles on the responsibility of States for internationally wrongful acts, p. 104.

10 Ilascu and Others v. Moldova and the Russian Federation, judgment of 8 July 2004 , § 331.

11 Gongadze v. Ukraine , judgment of 8 November 2005 , § 165; Kiliç v. Turkey (no. 22492/93), judgment of 28 March 2000 , §§ 62-63, ECHR 2000 III.

12 Öcalan v. Turkey , judgment of 12 May 2005 , §§ 83-90; Stocké v. Germany , 12 October 1989 , Series A no. 199, opinion of the Commission, p. 24, § 167.

13 See, mutatis mutandis, Ilascu, § 333.

14 See Kurt v. Turkey , judgment of 25 May 1998, § 124.

15 Slovakia indicates more generally that officials of foreign agencies have no particular status in the Slovak Republic.

16 Recommendation 1713 (2005) Democratic oversight over the security sector in member States.

17 See Article 16 of the Chicago Convention.

18 Article 3bis § b.

19 See ‘NATO Transformed’, 2004 at <http://www.nato.int/docu/nato-trans/html_en/nato_trans01.html> and the US Department of Defense, Fact Sheet of 7 June 2002 , ‘International contributions to the War against terrorism, at <http://canberra.usembassy.gov/hyper/2002/0628/epf504.htm>.

20 The Convention states in article 1 § 4 that it ‘shall not apply to aircraft used in military, customs or police service’.

21 See X and Y v. the Netherlands, judgment of 26 March 1985; M.C. v. Bulgaria, judgment of 4 December 2003 ; Siliadin v. France, judgment of 26 July 2005 .

22Al-Adsani v. the United Kingdom; judgment of 21 November 2001 , §47; McElhinney v. Ireland, judgment of 21 November 2001 , §24; Fogarty v. United Kingdom, judgment of 21 November 2001 , §25.

23 Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998 .

24 Al-Adsani v. the United Kingdom , judgment of 21 November 2001 , § 61.

25 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, 197-199; A and Others v Secretary of State for the Home Department [2005] UKHL 71 of 8 December 2005 .

26 Article 7 § 2 (1) reads as follows:

Article 7 - Crimes against humanity

1.         For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: …

(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)     Torture;

(i)     Enforced disappearance of persons;

(k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2.         For the purpose of paragraph 1:

(e)     "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(i)     "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”.

27 See the remark in paragraph 88 below.



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