Reply to Recommendation | Doc. 11493 | 19 January 2008
Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report
Less
than a year after the events in New York on 11 September 2001, the
Committee adopted guidelines for member states on human rights and
the fight against terrorism. In these guidelines, it reaffirmed
states’ obligation to respect, in their fight against terrorism,
the international instruments for the protection of human rights
and, for the member states in particular, the Convention for the Protection
of Human Rights and Fundamental Freedoms and the case law of the
European Court of Human Rights. The guidelines have been widely
disseminated and have served as an inspiration for discussions at
the international level. In 2005, the Committee of Ministers adopted
and opened for signature the Council of Europe Convention on the
Prevention of Terrorism, a landmark treaty in this area.the legislation
on national security services should be adapted to the task of combating
the current level of terrorist threats while protecting human rights,
the rule of law and democracy. It considered that a study of the
legislation on, and the practice in respect of, democratic oversight
of national security in the Council of Europe member states would
be a useful tool for defining how the accountability of these services
can best be achieved in a democratic society, due regard being paid
to the need for them to be efficient. The Committee therefore invited
the Venice Commission to carry out such a study giving special emphasis
to the role of parliaments and their specialised committees as well
as to that of national courts in carrying out this task.reached
deeply into sensitive areas of national security, law and practice. It
would therefore give them careful consideration and return to this
issue at one of its forthcoming meetings.From
this report, the Committee of Ministers noted, inter alia, that the commission
considered that in order to anticipate, prevent or protect itself
against threats to its national security, a state needs effective intelligence
and security services. However, the commission also pointed out
that in the post-11 September 2001 era, the changed powers and functions
of the domestic security services and international co-operation in
the fight against terrorism require improved control over the manner
in which these powers are used and their acceptability in a democratic
society. In its report, the Venice Commission highlighted the difficulties
of holding the security services accountable, mostly on account
of the “subjectivity and flexibility of the term ‘national security’”.
It also pinpointed, in relation to the possibility of redressing
undue human rights infringements by the services, that a court’s
ability to consider all the evidence or to go to the heart of the
issue may be limited by invoking the “state secret”. It noted that,
for this reason, certain states have alternative, specialist tribunals,
or ombudsman-like systems, or allocate complaint functions to parliamentary
committees. Appendix 1 – Opinion of the European Commission for Democracy through Law (Venice Commission) on Parliamentary Assembly Recommendation 1801 (2007) on secret detentions and illegal transfers of detainees involving Council of Europe member states: second report
(open)A. Introduction
On 5 July 2007, the Committee of Ministers of the Council of Europe decided to ask the Venice Commission to provide comments on Parliamentary Assembly Recommendation 1801 (2007) on secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, before 30 October 2007.
These comments were prepared by Mr Jan Helgesen (CDL(2007)082). The commission took note of them at its 72nd Plenary Session (Venice, 19-20 October 2007).
B. Background
In its Recommendation 1801 (2007) on secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, adopted on 27 June 2007, the Parliamentary Assembly of the Council of Europe invited the Committee of Ministers to prepare a recommendation concerning the concepts of state secrecy or national security in order to: ensure that information and evidence concerning the civil, criminal or political liability of the state’s representatives for grave human rights violations committed are excluded from protection as state secrets; introduce appropriate procedures ensuring that the culprits are accountable for their actions while preserving lawful state secrecy and national security, when secrets unworthy of protection are inextricably linked with lawful state secrets.
The Parliamentary Assembly also invited the Committee of Ministers to look into the need for member states to provide democratic oversight of the activities of national intelligence services in respect of, in particular, military intelligence services as well as those foreign intelligence services operating in their territory.
On 5 July 2007, the Committee of Ministers decided to bring this recommendation to the knowledge of the Venice Commission and to seek its possible comments thereon before 31 October 2007.
C. Previous work of the Venice Commission in this area
The Venice Commission has previously carried out two studies
on the internal security services, in which it had stressed the
need for national constitutions and legislation to state the accountability
of the security services for undue human rights infringements.
The Venice Commission, in its report on the democratic oversight
of the security services, highlighted the difficulties of holding
the security services accountable, mostly on account of the “subjectivity
and flexibility of the term ‘national security’”. It also pinpointed,
in relation to the possibility of redressing undue human rights infringements
by the services, that a court’s ability to consider all the evidence
or to go to the heart of the issue may clearly be limited by invoking
the “state secret”. It noted that, for this reason, certain states
have alternative, specialist tribunals or ombudsman-like systems,
or allocate complaint functions to parliamentary committees.
The commission has so far not dealt with the oversight of
foreign intelligence services or of military intelligence services,
except in so far as these perform internal security functions. In
its report on the democratic oversight of the security services,
the commission considered that “the diffuse boundary between these
services and the function of internal security, especially as regards
the fight against terrorism, merits further study”.
D. Future perspectives
It appears relevant and useful to examine more in detail:
a. the national legislation and practice relating to the concepts of “national security” and “state secret”;
b. the need for the democratic oversight of the foreign intelligence services and of military intelligence services.
The Venice Commission is ready to assist in the examination of these matters, if so requested.
Appendix 2 – Opinion of the Steering Committee for Human Rights (CDDH) on Parliamentary Assembly Recommendation 1801 (2007) on secret detentions and illegal transfers of detainees involving Council of Europe member states: second report
(open)The Steering Committee for Human Rights (CDDH)
already indicated in its comments on Parliamentary Assembly Recommendation 1791 (2007) –
State of human rights and democracy in Europe – that it will address
human rights problems raised by secret detentions and illegal transfers
of detainees in comments on Parliamentary Assembly Recommendations 1754 (2006) and 1801 (2007).
The CDDH notes that the reports by the Parliamentary Assembly and the Secretary General contain allegations of serious human rights violations and of certain lacunae in the internal law of member states, which does not seem to offer sufficient protection against such violations. In this context, the CDDH wishes to recall the existing obligations under the ECHR, according to which prompt and effective investigations capable of leading to the identification and punishment of those responsible for any illegal acts is the most appropriate reaction to serious allegations of grave human rights violations. The CDDH also recalls that, according to the case law of the European Court of Human Rights, the responsibility of a state party for the material breach of the provisions of the ECHR may not only result from direct action by its authorities, but also from failing to comply with their positive obligations to prevent human rights violations on their territory or to conduct an independent and impartial investigation into substantial allegations of such human rights violations. The CDDH recalls that it is the responsibility of states parties to take the necessary steps to comply with these requirements of the Convention.
The CDDH is ready, should the Committee of Ministers so request, to undertake any intergovernmental activities that will assist member states in taking firm action to protect human rights in their jurisdictions and to contribute to any other measures, the purpose of which should be preventive.
The CDDH notes that the Committee of Ministers still has to
take a final decision on the Secretary General’s proposals prepared
in June 2006 and submitted to the Committee in September 2006 (SG(2006)01). These proposals,
which took account of the results of the Parliamentary Assembly’s
inquiry and the opinion of the European Commission for Democracy
through Law (Venice Commission) of March 2006 (Opinion No. 363/2005),
have been endorsed by the European Parliament and the Parliamentary
Assembly itself. In the opinion of the CDDH, if the Committee of
Ministers deems it necessary, they could be a starting point for
future intergovernmental work.
Taking into account the complex and sensitive nature of the issues raised, one option could be, as a first step, for the Committee of Ministers to convene an expert meeting with a view to identifying issues such as state secrecy and national security interests mentioned in paragraph 3 of Recommendation 1801 (2007) that could be addressed through intergovernmental follow-up, drawing on the work already undertaken in the Council of Europe and other fora, in particular the United Nations. The CDDH is ready to participate in such a meeting and to contribute its expertise in human rights, it being understood that the participation of senior specialists of all relevant fields would be required.
Appendix 3 – Opinion of the European Committee on Crime Problems (CDPC) on Parliamentary Assembly Recommendation 1801 (2007) on secret detentions and illegal transfers of detainees involving Council of Europe member states: second report
(open)Following the adoption by the Parliamentary Assembly of Recommendation 1801 (2007) on the secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, the Committee of Ministers decided to communicate it to the European Committee on Crime Problems (CDPC), for information and possible comments. The CDPC examined the above-mentioned recommendation and decided to contribute to the response of the Committee of Ministers by providing the following comments:
The CDPC recalled the International Convention for the Protection
of All Persons from Enforced Disappearance, adopted by the General
Assembly of the United Nations on
20 December 2006 and opened for signature on 6 February 2007, entry
into force of which would significantly contribute to combating
secret detention practices.
The CDPC underlined the fundamental importance for any society based on democratic values and human rights that any responsibility of government authorities in relation to allegations of grave human rights violations be thoroughly investigated, those responsible brought to justice and the presumed victims compensated.
The CDPC confirmed its readiness to contribute, within its fields of competence, to any future work that the Committee of Ministers might decide to undertake in this field.