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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.

EXECUTIVE SUMMARY

This summary is not authoritative and only serves to give a short overview of the main points of the official report. It does not form part of the official report itself.

This report contains the results of an analysis of the replies received from 45 of the 46 States Parties to the ECHR in response to the Secretary General’s inquiry of 21 November 2005.

The Article 52 inquiry was launched against the background of reports alleging involvement by States Parties in unlawful deprivation of liberty of terrorist suspects and their transport in or through their territory by or at the instigation of foreign agencies (“secret detention”, “extraordinary rendition”).

States were asked to explain how their internal law ensured the effective implementation of the ECHR on four issues:

  1. adequate controls over acts by foreign agents in their jurisdiction;
  2. adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents;
  3. adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents;
  4. whether since 1 January 2002 any public official has been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation is under way or has been completed.

On the basis of an analysis of the replies to Questions 1, 2 and 3, the first conclusion is that all forms of deprivation of liberty outside the regular legal framework need to be defined as criminal offences in all States Parties and be effectively enforced. Offences should include aiding and assisting in such illegal acts, as well as acts of omission (being aware but not reporting), and strong criminal sanctions should be provided for intelligence staff or other public officials involved in such cases.

However, the most significant problems and loopholes revealed by the replies concern the ability of competent authorities to detect any such illegal activities and take resolute action against them. Four main areas are identified where further measures should be taken at national, European and international levels:

  • the rules governing activities of secret services appear inadequate in many States; better controls are necessary, in particular as regards activities of foreign secret services on their territory;
  • the current international regulations for air traffic do not give adequate safeguards against abuse. There is a need for States to be given the possibility to check whether transiting aircraft are being used for illegal purposes. But even within the current legal framework, States should equip themselves with stronger control tools;
  • international rules on State immunity often prevent States from effectively prosecuting foreign officials who commit crimes on their territory. Immunity must not lead to impunity where serious human rights violations are at stake. Work should start at European and international levels to establish clear human rights exceptions to traditional rules on immunity;
  • mere assurances by foreign States that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanisms need to be set out in agreements and national law in order to protect ECHR rights.

It gives rise to serious concern that some States Parties have not replied or not replied completely to Question 4. This is particularly worrying as regards States which have been cited by the Parliamentary Assembly rapporteur, Mr Dick Marty, in his memorandum of January 2006: Bosnia and Herzegovina, Italy, Poland and “the former Yugoslav republic of Macedonia”.

* * *

Not all replies provide sufficient explanations on all four questions. For other replies, clarifications are necessary on specific points. Follow-up letters will be sent to the States concerned.

On the more general problems identified in this report, the Secretary General will in due course present proposals for Council of Europe action to the Committee of Ministers.

CONTENTS

I. Introduction

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

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
    2. Scope of the request
    3. The replies received and their scope

IV. Analysis

    1. Introduction

    2. Replies to the four questions

    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
      ii) Security Services
      iii) Military personnel
      iv) Flights allegedly used for rendition purposes

    2.2 Question 2 – Adequate safeguards to prevent unacknowledged deprivation of liberty

    2.3 Question 3 – Adequate provisions to deal with alledged infringements of Convention rights

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

      i) How have State Parties replied?
        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?
        b) Are there any official investigations completed or under way?


      ii) Comments

V. Conclusions

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Appendices :

 



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