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Secret detentions and illegal transfers of detainees involving Council of Europe member states: Second report

Provisional version

Committee on Legal Affairs and Human Rights
Rapporteur: Mr Dick Marty, Switzerland, ALDE

A. Draft resolution

1. The Parliamentary Assembly recalls its Resolution 1507 (2006) and Recommendation 1754 (2006), and refers to the report of 12 June 2006  revealing the existence of a “spider's web” of illegal transfers of detainees woven by the CIA in which Council of Europe member states were involved, and expressing suspicions that secret places of detention might exist in Poland and Romania.

2. It now considers it factually established that such secret detention centres operated by the CIA have existed for some years in these two countries, though not ruling out the possibility that secret CIA detentions may also have occurred in other Council of Europe member states.

3. Analysis of the data on the movements of certain aircraft, obtained from different sources, including international air traffic control authorities, and supplemented by numerous credible and concordant testimonies, has enabled the places in question to be identified.

4. These secret places of detention formed part of the “HVD” (High Value Detainees) programme publicly referred to by the President of the United States on 6 September 2006.

5. Analysis of this programme, on the basis of information obtained from many sources on both sides of the Atlantic, shows that detainees considered especially sensitive - some of whom were mentioned by the President of the United States – were held in Poland. For logistical and security reasons, detainees considered to be less important were held in Romania.

6. The “HVD” programme was set up by the CIA with the co-operation of official European partners belonging to Government services and kept secret for many years thanks to strict observance of the rules of confidentiality laid down in the NATO framework. The implementation of this programme has given rise to repeated serious breaches of human rights.

7. The detainees were subjected to inhuman and degrading treatment, sometimes protracted. Certain “enhanced” interrogation methods used fulfil the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights and the United Nations Convention against Torture. Furthermore, secret detention as such is contrary to many international undertakings both of the United States and of the Council of Europe member states concerned.

8. The Assembly earnestly deplores the fact that the concepts of state secrecy or national security are invoked by many Governments (United States, Poland, Romania, “the former Yugoslav Republic of Macedonia”, Italy and Germany, as well as the Russian Federation in the Northern Caucasus) to obstruct judicial and/or parliamentary proceedings aimed at ascertaining the responsibilities of the executive in relation to grave allegations of human rights violations and at rehabilitating and compensating the alleged victims of such violations.

9. Information as well as evidence concerning the civil, criminal or political liability of the state’s representatives for serious violations of human rights must not be considered as worthy of protection as state secrets. If it is not possible to separate such cases from true, legitimate state secrets, appropriate procedures must be put into place ensuring that the culprits are held accountable for their actions while preserving state secrecy.

10. The scope of the executive’s reserved area, exempted by virtue of state secrecy and national security from parliamentary and judicial review under legislation or in accordance with practice dating from the worst period of the Cold War, must be reconsidered to take into account the principles of democracy and rule of law.

11. The Assembly is also anxious about the threats to the European governments’ freedom of action resulting from their covert involvement in the CIA’s unlawful activities. The disclosure of the truth, necessary on grounds of principle, is also the best way of restoring the vital co-operation between secret services for the prevention and suppression of terrorism on a sound and sustainable basis.

12. Only Bosnia and Herzegovina and Canada, the latter an observer to the Council of Europe, have fully acknowledged their responsibilities with regard to the unlawful transfers of detainees.

13. The Romanian parliamentary delegation has shown a firm resolve to co-operate with the Assembly, but has itself encountered the government authorities’ reluctance to shed all possible light on the CIA’s questionable activities in Romanian territory.

14. In Italy, the trial of the kidnappers of Abu Omar runs into obstacles due to considerations of state secrecy. The Assembly is deeply perturbed by the proceedings brought recently against the Milan public prosecutors themselves for breach of state secrecy. It regards such proceedings as intolerable impediments to the independence of justice.

15. In Germany, the work of the Bundestag commission of inquiry is proceeding energetically. But the prosecutorial authorities, engaged in the hunt for the kidnappers of Khaled El-Masri, still meets with lack of co-operation on the part of the American and Macedonian authorities. Khaled El-Masri still awaits the rehabilitation and redress of damage owing to him, in the same way as Maher Arar, the victim in a comparable case in Canada.

16. The Assembly solemnly restates its position that terrorism can and must be combated by methods consistent with human rights and rule of law. This position of principle, founded on the values upheld by the Council of Europe, is also the one that best guarantees the effectiveness of the fight against terrorism in the long term.

17. The Assembly therefore calls upon:

17.1. the parliaments and judicial authorities of all Council of Europe member states;

17.1.1. to elucidate fully, by reducing to a reasonable minimum the restrictions of transparency founded on concepts of state secrecy and national security, the secret services’ wrongful acts committed on their territory with regard to secret detentions and unlawful transfers of detainees; and
17.1.2. to ensure that the victims of such unlawful acts are fittingly rehabilitated and compensated;

17.2. the media to fully perform their role as champions of transparency, truth, tolerance and of human rights and dignity; and

17.3. the competent authorities of all member states to implement the other proposals embodied in its Resolution 1507 (2006).

18. Finally, the Assembly reaffirms the importance of setting up within it a genuine European parliamentary inquiry mechanism.
B. Draft recommendation

1.  The Parliamentary Assembly refers to its Resolution … (2007). It also recalls its Recommendation 1754 (2006), noting with regret that the Committee of Ministers has not as yet acted positively either on its own proposals or on those of the Secretary General of the Council of Europe submitted in June 2006, which the Assembly fully endorses.

2. The Assembly condemns the deafening silence of the Committee of Ministers as regards the 3rd public statement of the Council of Europe Anti-Torture Committee concerning the existence of secret detention facilities in the Chechen Republic of the Russian Federation, made on 13 March 2007. It urges the Committee of Ministers to play its full part as the decision-making body of the Council of Europe, the organisation which is guardian of human rights in Europe.

3. Given that the concepts of state secrecy or national security are invoked by many governments to obstruct judicial or parliamentary proceedings aimed at ascertaining the responsibilities of the government authorities in relation to grave allegations of human rights violations and at rehabilitating and compensating the presumed victims of such violations, the Assembly invites the Committees of Ministers to prepare a recommendation on the matter, in order:

3.1. to ensure that secrets concerning the civil, criminal or political liability of the State’s representatives for grave human rights violations committed in their name are excluded from protection as state secrets;

3.2. to introduce appropriate procedures ensuring that the culprits are accountable for their actions while preserving lawful state secrecy and national security, if secrets unworthy of protection are inextricably linked with lawful state secrets.

4. The Committee of Ministers should be guided in particular by the Canadian procedures followed in the case of Maher Arar and by national parliamentary inquiry procedures such as the rules of the German Bundestag commissions of inquiry providing for the possibility of the commission’s appointing a special investigator.

5. The Committee of Ministers is invited to inform the Assembly, before the end of 2007, of the progress of its work on the implementation of the Secretary General’s proposals, and of the Assembly’s Recommendation 1754 (2006).

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