Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states
AS/Jur (2006) 16 Part II
7 June 2006
Committee on Legal Affairs and Human Rights
Draft report – Part II (Explanatory memorandum)
Rapporteur: Mr Dick Marty, Switzerland, ALDE
C. Explanatory memorandum
by Mr Dick Marty, Rapporteur
7. Individual cases: judicial proceedings in progress
7.1. A positive example: the Milan public prosecutor's office (Abu Omar case)
237. In this case, the Italian judicial authorities and police have shown great competence and remarkable independence in the face of political pressures. A competence and independence already proven during the tragic years stained with blood by terrorism. The Milan public prosecutor's office was able to reconstitute in detail a clear case of ‘rendition’ and a regrettable example for the lack of international cooperation in the fight against terrorism201. As I have already said202, the Italian judicial authorities have brought international arrest warrants against 22 American officials. In addition, the ongoing investigation seems to be in the process of showing that operatives belonging to the Italian services have participated in the operation.
7.2. A matter requiring further attention: the Munich (El-Masri case) and Zweibrücken (Abu Omar case) public prosecutors' offices
238. The German justice system gave its attention to the Abu Omar and El-Masri cases in terms of criminal proceedings for abduction against persons unknown. In the first-named case, normal co-operation took place with the Milan public prosecutor's office. As I have already stated, in my information memorandum of January 2006, the Zweibrücken public prosecutor's office came up against a total lack of co-operation by the American authorities, which refused to provide any information on what had happened at the Ramstein base.
239. Where the second case is concerned, I have already203 given some information showing that certain serious investigative measures have already been taken and that more remains to be done, especially in relation to the witnesses named by him and to clarification of the possible role played by the various German intelligence services.
7.3. Another matter requiring further attention: the Al Rawi and El Banna case
240. Where the case of Al Rawi and El Banna is concerned, the British justice system has had to deal with an application by the families of the persons concerned attempting to force the UK government to intercede with the US government to obtain the release of both men, who are still held at Guantánamo Bay. It was in the framework of this procedure that the telegrams proving that MI5 was involved in the two men's arrest in Gambia came into the public domain. After proceedings had begun, the UK authorities agreed to intercede on Mr Al Rawi’s behalf, but not on that of his fellow detainee, Mr El Banna, although he had been arrested for the same reasons with the assistance of the UK services. In May 2006, the action was dismissed by the court of first instance.
241. In view of the circumstances which have led up to the arrest of these two men, on may think that the UK government is under at least a moral and political obligation to do everything in its power to actively intercede to secure their release from Guantanamo so that they can return to the country.
7.4. Sweden: what next in the Agiza and Alzery case?
242. Sweden was condemned by the UN Committee against Torture in respect of the case of Mr Agiza and Mr Alzery, which led to an investigation by the parliamentary ombudsman, Mr Mats Melin. He noted that a preliminary investigation by the judicial authorities had culminated in the termination of the proceedings204.
243. According to some criticisms, which do not appear unfounded, different aspects of the case need further investigation. This disguised extradition, without any possibility of appeal and judicial scrutiny, and the ill-treatment at Bromma airport, still on the ground, under the eyes of Swedish officials, as well as the incomplete information provided to UN-CAT are serious matters which require that the whole truth be exposed.
244. The Palma de Mallorca public prosecutor's office has begun an investigation following the transmission of a Guardia Civil file containing the names of the passengers on the aircraft which took off from the local airport bound for Skopje, where they were most likely joined by Mr El-Masri and flown on to Afghanistan205.
7.6. Mr El-Masri’s complaint in the United States
245. With the assistance of the American Civil Liberties Union206, Mr El-Masri has taken judicial action in Alexandria, in Virginia, seeking compensation from the CIA. On 19 May 2006, his complaint was rejected by the court of first instance, without a ruling on the merits of his application, as the court accepted the US government's argument that continuation of the proceedings would have jeopardised national security. In the course of the trial, the CIA’s secret methods would indeed become the subject of discussions before the court.
201 I talked to Chief Prosecutor Mr Spataro for several hours and I wish to thank him for being so generous with his time.
202 In para. 162
203 In para. 103
204 See above, para. 152
205 I have in my possession a copy of this list, but I have no information on the state concerned.
206 I should like to thank the ACLU for making detailed documentation about this case available to me.