|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.
94. I am grateful to the Governments of the States Parties for providing me with explanations further to my request. The fact that all Council of Europe member States have done so is a clear sign of their commitment to the European Convention on Human Rights and to the Council of Europe.
95. The analysis of the explanations received has reinforced my conviction that it was both necessary and appropriate to use Article 52 in order to seek explanations of the manner in which the internal laws of States Parties ensure the effective implementation of certain Convention rights and freedoms in the light of allegations about secret detentions and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies.96. The explanations received vary widely in scope and depth. Some replies provide comprehensive information. Others do not address some of the questions in a sufficiently detailed manner or leave some important aspects of these questions unanswered. I shall therefore seek further explanations from these States.
97. There are some basic preliminary conditions to be met as a first step in order to avoid the risk of involvement in activities contrary to the European Convention on Human Rights.
98. All States Parties must ensure that there is adequate criminal law protection. All forms of unacknowledged deprivation of liberty, including aiding and abetting such acts, should be defined as criminal offences under national law. We need adequate sanctions which are commensurate with the gravity of the acts or omissions. It should not be lawful for anybody to be aware of illegal deprivations of liberty and fail to take appropriate action, such as reporting the crime or putting an end to it. It would be appropriate to establish enhanced criminal responsibility for public officials involved in such acts or omissions, including agents of the intelligence services.
99. Detainees should only be held in officially recognised places of detention. As the European Committee for the Prevention of Torture (CPT) has repeatedly stated, no safeguard is more important than the requirement that a person’s deprivation of liberty be formally recorded without delay. Records should include data about time of arrival, transfers and names of officers responsible for such transfers.
100. Such traditional basic safeguards are essential, but they are not enough to avoid the risk of member States of the Council of Europe becoming involved in illegal activities such as secret detentions and transfers. Measures must also be taken to ensure that the authorities are effectively capable of detecting any such activities and taking resolute action against them. It is here that the explanations received point to the most significant problems and loopholes in the laws and practice of our member States.
101. On the basis of my analysis of the explanations received, I should like to highlight four areas which require attention both at domestic level and in the framework of the Council of Europe and other international fora:
I) The existing legislative and administrative framework for the activities of secret services appears to be inadequate in many of our member States. While there are some mechanisms in place in a number of countries regarding the activities of national secret services, the activities of foreign secret services appear to be insufficiently controlled. We need an appropriate regulatory framework providing for effective safeguards against abuse, democratic oversight by national Parliaments and judicial control in cases of alleged human rights violations. As the explanations of some States Parties show, ways and means can be found to preserve the necessary confidentiality of classified information whilst ensuring adequate controls.
II) The current international legal framework for air traffic does not seem to provide adequate safeguards against abuse and needs to be rethought. Governments are clearly having problems in exercising meaningful control because the existing standardised procedures in the case of civil aircraft make it difficult for the competent authorities to ascertain whether aircraft transiting through their airspace, whether they land or not, are used for purposes incompatible with internationally recognised human rights standards. At the same time, every State should now enhance their control tools to the maximum extent possible under the current framework.
III) The relationship between State immunity and human rights should be reconsidered. Torturers and perpetrators of other serious human rights violations such as illegal detentions and enforced disappearances must not be able to hide behind the veil of immunity. International law should not regard it as being contrary to the dignity or sovereign equality of nations to respond to claims against them or their agents. We need to establish clear exceptions to State immunity in cases of serious human rights abuses. This work should be done through co-operation between governments at European level.
IV) Mere assurances that the activities of foreign agents comply with international and national law are not enough. We need effective guarantees and mechanisms to enforce, if necessary, the rights and freedoms enshrined in the Convention. Such guarantees should be set out in international or bilateral agreements and in domestic law.
102. The governments of States Parties have a duty to investigate the allegations about the involvement of member States of the Council of Europe in secret detention centres and “extraordinary rendition” flights. Under the Convention, every State Party must ensure that its territory is not used for abducting or transferring any person to a country where there is a real risk that he or she may be subjected to torture or inhuman or degrading treatment.
103. As regards the situation of specific countries, it gives rise to serious concern that some States Parties have not replied at all to the question about the possible involvement of their public officials or have given an incomplete reply. This is particularly worrying as regards those States which have been cited in the allegations referred to in the Information memorandum presented by Parliamentary Assembly Rapporteur Mr Dick Marty in January 2006.
104. As regards the next steps to be taken, I shall
- make this report public;
- make public on the Council of Europe website all the replies received from the States Parties;
- where appropriate, send individual follow-up letters under Article 52 to States Parties to seek further explanations or clarifications regarding the information already provided;
- in due course make proposals to the Committee of Ministers for Council of Europe action addressing the more general problems at European level.
105. I am confident that member States will continue to comply with their obligations under Article 52 and provide me, where necessary, with further explanations and information. I shall report again in the light of further replies to be received.
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