1. Introduction
1. The present report is based
on a motion for a resolution tabled on 18 May 2021,
which was referred
to the Committee on Legal Affairs and Human Rights. On 27 September
2021, the committee appointed me rapporteur.
2. The motion for a resolution referred to the term “transnational
repression” as “actions authorised by governments and their security
and intelligence services against their nationals, political challengers,
civil society activists and journalists residing abroad”. Even if
known to exist before, these extraterritorial acts of repression
have recently reached an unprecedented level, with more than 600
reported cases since 2014, including assassinations, violence, disappearances,
forced abductions and actions to destabilise exiled communities
abroad. New transnational repression is taking place more openly
in an international environment where autocrats co-operate with
one another and avoid international scrutiny. The motion, therefore,
proposed that the Parliamentary Assembly investigate this phenomenon
and its consequences for the Council of Europe and its member States.
3. During the preparation of the report, on 14 November 2022,
the committee held a hearing with the participation of two experts:
Mr Bruno Min, legal director at Fair Trials, London, and Mr Vytis
Jurkonis, project director at Freedom House, Vilnius.
4. In this report, I will start by looking at transnational repression
as an emerging global phenomenon and some of the responses by certain
States to face the problem. I will then refer to the practices and
some of the most notable cases of transnational repression in Europe
in recent years; provide an overview of the relevant Council of
Europe standards applicable in this sphere; and finally present
a number of proposals to strengthen the fight against transnational
repression by States and the Council of Europe as a whole.
2. Transnational repression is an emerging
global phenomenon
5. The assassination and dismemberment
of a Saudi journalist, Jamal Khashoggi, inside Saudi Arabia's consulate
in Istanbul in October 2018, brought transnational repression to
light as a global phenomenon. This incident demonstrated how authoritarian
regimes were no longer confined to the boundaries of their territories in
persecuting and suppressing dissidents and political opponents.
Scholars now speak of an “emerging field of international studies
research around the novel means that autocracies employ to exercise
power over populations abroad”, and of “global authoritarianism”.
6. Though the term is recent, the practice of transnational repression
is not new. It can be traced back to the Cold War, when secret services
used various methods to pursue dissidents who fled authoritarian
regimes. The assassination of Bulgarian dissident writer Georgi
Markov in London in 1978 with a poisoned umbrella is one notorious
example of transnational repression. Yet, in modern times, with
globalisation, migration and the spread of digital technologies,
extra-territorial repression has become global and systemic. What
worries me the most is that transnational repression has become
part of state policy in some countries, including current and former
member States of the Council of Europe.
7. In a report published in 2021, the human rights non-governmental
organisation Freedom House presented the most comprehensive overview
of transnational repression as a worldwide phenomenon using the
following state-sponsored techniques:
a. direct attacks by
which “an origin State carries out a targeted physical attack against
an individual abroad”. This category includes assassinations, assaults,
disappearances, physical intimidation, and violent forced renditions;
b. co-opting other countries, which
is a situation where States manipulate other States “to act against
a target through detention, unlawful deportation, and other types
of forced renditions, which are authorised through pro forma but
meaningless legal procedures”;
c. mobility controls are
defined as tactics including “passport cancellation and denial of
consular services, preventing the target from travelling or causing
them to be detained”;
d. threats from a distance include
“online intimidation or surveillance and coercion by proxy, in which
a person’s family, loved one, or business partner is threatened,
imprisoned, or otherwise targeted”.
8. Freedom House catalogued 608 direct, physical cases of transnational
repression that occurred in the period from January 2014 through
November 2020, drawing a list of 31 persecuting States conducting
physical transnational repression in 79 host countries. In each
incident, the persecuting State’s authorities physically reached
an individual settled abroad, whether through detention, assault,
physical intimidation, unlawful deportation, rendition, or even
assassination.
According
to its most recent update published in April 2023, the number of
incidents of physical transnational repression committed since 2014
has gone up to 854. These were committed by 38 governments in 91
countries around the world. In 2022, Freedom House recorded 79 incidents
committed by 20 governments. Also according to Freedom House, the
most prolific perpetrators of transnational repression are the governments
of China, Türkiye, Russia, Egypt and Tajikistan.
9. Yet, this is only a partial account of the cases of transnational
repression. Hundreds of other cases still lack sufficient documentation,
especially detentions in the countries of persecution after unlawful
deportations, digital harassment, secret surveillance, etc. Even
if cases often appear to be isolated incidents – a suspicious assassination
here, a kidnapping there – transnational repression is becoming
a “normal” phenomenon, which represents a growing threat to human
rights, security and the rule of law in host countries.
10. Physical transnational repression is only the tip of the iceberg.
Beyond the physical cases recorded in Freedom House’s database,
there are much more widespread tactics of “everyday” transnational
repression: digital threats, spyware, coercion by proxy, imprisonment
or persecution of the exiles’ families living in the States of origin,
etc.
Citizen Lab reported
an increasing trend of using digital technologies as new tools to control,
silence, and punish dissent across borders.
This phenomenon is known as “digital transnational repression”,
of which the use of the Pegasus spyware is the most prominent example.
The
misuse on politically motivated grounds of interstate legal assistance
mechanisms such as anti-money laundering and anti-terror financing
measures is also a form of transnational repression, which may have
far-reaching consequences for the individuals targeted including
asset freezing, financial exclusion and violation of property rights.
11. The United States was the first to address the phenomenon
of transnational repression at the legislative level and through
consistent law enforcement practices. The FBI defined it as harassment
and intimidation by some countries of their own citizens living
in the USA, targeting naturalised or US-born citizens who have family overseas
or other foreign connections, in violation of US law and individual
rights and freedoms. Transnational repression might take the forms
of stalking, harassment, hacking, assaults, attempted kidnapping,
forcing or coercing the victim to return to the home country, threatening
or detaining family members in the home country, freezing financial
assets, online disinformation campaigns, etc.
In 2019, the Commission on Security
and Cooperation in Europe, also known as the US Helsinki Commission
of the US Federal Government, introduced
the Transnational
Repression Accountability and Prevention (TRAP) Act (H.R. 4330)
to address politically-motivated abuse of Interpol by autocracies,
which passed as part of the 2022 National Defense Authorization
Act 2021.
In July 2022,
the Department of State circulated a Diplomatic Note to Chiefs of Missions
in Washington DC to warn foreign diplomats against “targeting individuals
(…) for peacefully exercising their human rights and fundamental
freedoms, through various forms of harassment, intimidation and,
coercion.” At the close of 2022, US lawmakers also introduced a
bill to codify and criminalise transnational repression: the Stop
Transnational Repression Act would impose a maximum 10-year sentence
for those convicted of the crime.
According to Freedom House, these
are positive steps in combatting transnational repression, although
their credibility is undermined by bilateral relationships maintained
with States such as Saudi Arabia and Egypt.
12. In the United Kingdom, responding to a report documenting
the presence of three “unofficial Chinese police stations” on British
territory, the government announced in November 2022 the creation
of the Defending Democracy Taskforce. The purpose of this ministerial
taskforce is to work across the government and with the intelligence
community to protect the UK from transnational repression, among
other foreign threats.
In addition, the government has
also taken other steps including amendments to the National Security
Bill that would criminalise acts of coercion, harassment, and intimidation
that are linked to a foreign government and increase sentences for
existing criminal acts if they are undertaken for or on behalf of
a foreign power. The government has also proposed the creation of
a Foreign Influence Registration Scheme that would require organisations
and individuals to register with the secretary of state if they
plan to engage in “political influence” activities directed by a
foreign power.
13. In response to the growing phenomenon of repression, the European
Parliament commissioned a paper on the use of politically-motivated
Interpol Red Notices, which concluded that ”together with other
international institutions, [the European Parliament] have addressed
the misuse of Interpol Red Notices and diffusion orders and in particular
the politically motivated misuse on a continuous basis“. Yet even
following internal reforms of Interpol, including the appointment
of a Data Protection Officer, “reports of misuse continue to be
detected”.
According to Freedom House,
“Interpol abuse is the most well-understood form of transnational
repression within the international system”. It is a form of co-optation,
in which origin countries instrumentalise Interpol’s notification
mechanisms in order to manipulate a host country.
14. More recently (March 2023), the governments of Australia,
Germany, Estonia, Kosovo*
, Latvia, Lithuania,
Slovak Republic and the United States signed a “Declaration of Principles
to Combat Transnational Repression”. According to this declaration,
“transnational repression is a threat to democracy and human rights worldwide”.
The signatories of this declaration committed to: increase awareness
of the threat of transnational repression for officials, including
border enforcement, immigration, cybersecurity, and law enforcement personnel;
increase outreach to potential targets of transnational repression,
in co-ordination with civil society, to alert potential targets
to threats, inform of their rights, and explain how to report incidents;
establish clear procedures for the public to report to relevant
domestic authorities attacks, threats or harassment by foreign States
or actors; ensure that domestic laws provide officials with the
authority and tools needed to apprehend and prosecute perpetrators
of transnational repression; ensure that human rights activists
and civil society organisations have access to international forums
where they can share their experiences and raise awareness of the
threat of transnational repression; increase accountability for
perpetrators of transnational repression through targeted sanctions
and diplomatic consequences; press for increased transparency at
Interpol, as well as reforms to domestic procedures for the use
of Interpol notices where necessary to ensure such notices are not
misused; take into account other countries’ practices of transnational
repression when considering bilateral security agreements, extradition
treaties, foreign aid, and information-sharing practices; and impede,
including through export controls and licensing restrictions, the
misuse of surveillance technologies for digital transnational repression.
3. Practices
and cases of transnational repression in Europe
15. The above reports referred
to cases of transnational repression as a global phenomenon, with
many of them occurring or originating in the territories of current
and former member States of the Council of Europe. For the purposes
of the present report, I will describe below some notable cases
and practices of transnational repression occurred in Europe in
recent years.
3.1. Russia
16. The poisoning of Alexander
Litvinenko could be regarded as the best-known example of transnational repression.
Mr Litvinenko, a Russian ex-spy who defected to United Kingdom intelligence
and a prominent critic of Russian President Vladimir Putin, died
in November 2006 in London, three weeks after being poisoned by
radioactive polonium-210. Investigations in the United Kingdom found
that two Russian citizens acting under the direction of the FSB
(Federal Security Service) poisoned him with the “[probable approval]
by Mr [Nikolai] Patrushev, then head of the FSB, and also by President
Putin”.
In September 2021, the European
Court of Human Rights (the Court) found the Russian Federation responsible
for the targeted killing of Mr Litvinenko and the lack of an effective
investigation into his death.
17. The assassination of Mr Litvinenko was one in the long list
of suspicious deaths or physical attacks against Russian dissidents
settled in the United Kingdom. In June 2017, BuzzFeed News reported
other cases connected to a “wider
campaign of Kremlin-sanctioned killing around the world”
. This investigation identified
at least fourteen suspected assassinations and several failed murder
attempts, threats, or other forms of repression directed against
Russian dissidents settled abroad, mainly in the United Kingdom,
and notably linked to the so-called inner circle of Boris Berezovsky.
18. Igor Ponomarev, former Russian ambassador to the United Nations’
International Maritime Organization, collapsed and died after a
night at the opera in London in October 2006, two days before the poisoning
of Mr Litvinenko. It was reported that Mr Ponomarev had an upcoming
appointment to meet with a security consultant investigating connections
between the Russian security service and Italian politicians.
19. Reporter Daniel McGrory died suddenly in February 2007, five
days before the airing of an NBC documentary in which he reported
on the polonium that poisoned Mr Litvinenko. Another person interviewed for
that documentary, US security expert Paul Joyal, was shot and seriously
wounded on his driveway by unknown assailants soon after the documentary
was broadcasted. NBC reported these two incidents as “mysterious”.
20. Yuri Golubev, the co-founder of Yukos with Mikhail Khodorkovsky,
a political opponent of Mr Putin, was found dead in January 2007
at his flat in London. Shortly before his death, he had returned
from China via Moscow earlier than planned, saying he was not feeling
well. The death was classified as unsuspicious, but Russia’s Prosecutor
General declared that there were “all grounds to suppose” that Golubev
had been killed.
21. In November 2012, Alexander Perepilichnyy, a Russian financier,
died suddenly while jogging near his home in Surrey, England. He
disclosed and passed evidence on a US$230 million money-laundering
operation involving Russian government officials and the Russian
mafia.
The police
regarded the death as non-suspicious, but an expert later found
traces of a deadly plant in his stomach, known to trigger cardiac
arrest. British authorities lately classified the documents of this
investigation on national security grounds. BuzzFeed, relying on
US intelligence sources, quoted a secret report to Congress stating
with “high confidence” that Mr Perepilichnyy was assassinated on
direct orders of the Kremlin.
22. One month later, the high-rolling property dealer Robbie Curtis,
involved in Mr Berezovsky’s affairs, died in an apparent suicide
when he tumbled in front of a train for no apparent reason. Other
business partners of Mr Berezovsky, Paul Castle and Johnny Elichaoff,
lost their lives in apparent suicides, which BuzzFeed News deemed
suspicious in the context of Russia’s secret assassination programme.
23. Mr Berezovsky himself, known in Russia as the “godfather of
the oligarchs”, fled to the United Kingdom after falling afoul of
Mr Putin. He used his wealth to wage a broad public opposition campaign
against the ruling establishment in the Kremlin. He declared that
he had been subjected to a couple of failed assassination attempts.
Eventually, he was found hanged in his bathroom in 2013, which police
ruled a suicide, but the coroner recorded an open verdict.
BuzzFeed reported about US intelligence
officials suspecting the death of Mr Berezovsky to be rather an
elaborate assassination. In a statement to the Russian Duma, Russia's Prosecutor
General claimed that British intelligence had Mr Berezovsky killed
to prevent him from returning to Russia.
24. The chain of suspicious deaths of the so-called Berezovzky’s
inner circle continued in the following years. Scot Young, once
a multimillionaire and fixer to Mr Berezovsky, died in December
2014 after falling from a fourth-floor flat in London, which BuzzFeed
(relying on US intelligence sources) believed to be the work of Russian
hitmen targeting him ever since his fortune had vanished in a mysterious
Moscow property deal. In November 2015, Mikhail Lesin, Putin’s former
media adviser, who had got virtually all Russian media outlets under
the Kremlin's control, was found bludgeoned to death in the Dupont
Circle hotel in Washington, DC, allegedly by men working for an
oligarch close to Mr Putin (according to a leaked report by a British
former MI6 officer). Dr Matthew Puncher, the scientist who had measured
the fatal dose of radioactive polonium to poison Mr Litvinenko and
proved the Russian link, was found stabbed to death at his home
in Oxford in 2016. Nikolay Glushkov, a Russian exiled businessperson,
ex-deputy director of Aeroflot and a finance manager for AvtoVAZ (back
then under Mr Berezovsky’s management), died in March 2018 in suspicious
circumstances, which was ruled as an “unlawful killing” with injuries
consistent with strangulation.
25. The murder of the Chechen dissident Umar Israilov, a former
bodyguard of Ramzan Kadyrov, is another case of transnational repression
that has revealed the so-called Chechen nexus. Mr Israilov received
asylum in Austria as a critic of the Chechen government and was
willing to testify about the crimes committed by “Kadyrovites”,
including Mr Kadyrov himself and Adam Delimkhanov, currently a member
of the Russian Duma. In January 2009, Mr Israilov was shot dead
after a failed attempted kidnapping, which the Austrian police believed
to be ordered by Mr Kadyrov. Austrian courts found three Chechen
individuals guilty of accessory to murder, forming a criminal organisation
and attempted kidnapping; the shooter had fled.
26. Yet, after Alexander Litvinenko’s assassination, the poisoning
of Sergei and Yulia Skripal, also known as the “Salisbury attack”,
was deemed as the most blatant and dangerous case of transnational
repression attributed to Russian authorities. On 4 March 2018, Mr Skripal,
a former Russian military officer, and his daughter were poisoned
in Salisbury, United Kingdom, using a “Novichok” nerve agent. On
30 June 2018, in Amesbury, two British nationals suffered from the
same kind of poisoning (one died), as a result of the recklessness
in which the nerve agent container was disposed of after the poisoning
in Salisbury.
27. The United Kingdom authorities accused two Russian nationals
stating that they were active officers in the Russian military intelligence
(GRU). According to Bellingcat, they acted under the orders and
command of superior officers in Russia.
Allegedly, the attempted assassination
was organised by a secret unit of the Russian GRU, which is reportedly
responsible for a series of assassinations and attempts to destabilise European
countries, including major operations such as the annexation of
Crimea in 2014, destabilisation campaigns in the Republic of Moldova
in 2014, the failed coup in Montenegro in 2016, World Anti-Doping Agency-linked
operations in Switzerland in 2016-2017, and the illegal Catalonia
referendum in 2017.
28. The existence of such a military intelligence unit, along
with the law permitting the pursuit, by any means, of those whom
the Kremlin accuses of “extremism”
, proved the systemic character of
transnational repression used by the Russian authorities; not only
in the United Kingdom but also in other member States of the Council
of Europe.
29. Zelimkhan Khangoshvili, an ethnic Chechen Georgian, former
platoon commander during the Second Chechen War, and a Georgian
military officer during the 2008 Russo-Georgian War, turned into
a valuable source of information for Georgian intelligence by identifying
Russian spies. Labelled a terrorist by the Russian security service,
he was wanted in Russia as assassinated in Berlin, on 23 August
2019, by Vadim Krasikov, a Russian FSB operative labelled as “Tiergarten
murderer”. German courts found Mr Krasikov guilty of “state-contracted
killing” and determined that the Russian Government ordered the
murder.
This death was also claimed to be
part of an official Russian assassination programme.
30. Similar suspicions hovered around the murder of a former member
of the Russian Duma, Denis Voronenkov, shot dead in 2017 in Kyiv
after he had turned to criticise Mr Putin and Russian foreign policy
for the illegal annexation of Crimea. Ukrainian authorities reported
about a consistent Russian state-ordered policy in relation to other
three suspicious high-profile killings of Kremlin critics: Arkady
Babchenko, a prominent Russian war reporter; Amina Okuyeva, wife
of Chechen volunteer soldier Adam Osmayev, himself a survivor of
two failed assassination attempts;
Pavel Sheremet, an
ex-journalist for Russian state TV and a tough critic of the annexation
of Crimea and of President Aliaksandr Lukashenka.
31. In the list of Russian acts of transnational repression, the
Chechen trail occupies a special place. Two assassinations in early
2009 of Sulim Yamadayev (former Chechen military commander) in Dubai
and Mr Israilov in Austria (see above) marked the beginning of the
Chechen pattern. In 2020, Imran Aliyev, a prominent Kadyrov critic,
was stabbed to death in France. Tumso Abdurahmonov, another critic,
was attacked in his apartment in Sweden by a Chechen national but
managed to overwhelm his assailant. In July 2020, Mamikhan Umarov,
a Kadyrov critic, was killed in a Vienna suburb. Abdulvakhid Edelgireyev,
declared a key Chechen Islamist fighter affiliated with al-Qaida,
was shot dead in Türkiye.
32. Suspicious or confirmed assassinations are not the only tools
of transnational repression used by Russia. Assassination attempts
or failed operations should also be taken into account. For example,
the KGB defector Oleg Gordievsky claimed that he was poisoned at
the Kremlin’s order.
In 2007, an investigator,
relying on sources
from the Russian security service, declared that three secret agents
had made a trip to Boston to prepare the assassination of Yuri Felshtinsky,
who co-authored with Mr Litvinenko the book
Blowing Up
Russia.
33. Abusing Interpol Red Notices is another tool of transnational
repression for authoritarian governments to pursue their exiled
nationals abroad.
Russia was declared
the leader of such abuse (“Russia is responsible for … 38 percent
of all public Red Notices in the world, while the United States
… 4.3 percent and China 0.5 percent”
),
with the two notorious cases of Alexey Kharis and of Gregory Duralev,
asylum seekers in
the US who spent over a year in immigration detention based on Russian
Interpol Red Notices. Igor Borbot, a business partner of Mr Kharis,
Mr Khodorkovsky, the CEO of Yukos, Pavel Ivlev, a Russian lawyer
who advised Yukos and Mr Khodorkovsky, Sergey Leontiev and Alexander
Zheleznyak, Probusinessbank’s co-owners, all fled Russia and were
then targeted by Russian issued Interpol Red Notices. Bill Browder,
a client of the late Sergei Magnitskiy engaged in a worldwide campaign
aimed at holding to account Mr Magnitsky’s killers and enacting laws
providing for targeted sanctions, was also harrassed and persecuted
by the Russian authorities, by repeated attempts to abuse Interpol’s
Red Notice and Diffusion procedures.
34. Vladimir Osechkin, who participated as an expert in a hearing
on the issue of systemic torture before our committee in March 2023,
was placed on a wanted list by Russia after leaking a large archive
of documents, photos and videos documenting rape and torture of
inmates in Russian prisons by prison officials. He had sought asylum
in France after fleeing Russia and has been living under French
police protection. He has received death threats and has indicated
that he was the target of a possible assassination attempt at his
home in France.
35. The Freedom House 2021 report attributed to Russia 32 documented
cases of physical transnational repression (with 20 cases having
a Chechen nexus), which include assaults, detentions, unlawful deportations, and
renditions, mainly in Europe. 7 of 26 assassinations or assassination
attempts since 2014 were attributed to Russia, which, according
to Freedom House, “[at] a minimum, in Ukraine, Bulgaria, Germany,
and the United Kingdom, … has shown a willingness to kill perceived
enemies abroad”. Mr Frank Schwabe (Germany, SOC) referred to some
examples of transnational repression targeting Chechen exiles in
his report “The continuing need to restore human rights and the
rule of law in the North Caucasus region“.
36. A clear systemic pattern, even an official Russian policy,
to pursue dissidents abroad can be identified. Ukraine lodged an
inter State application against Russia before the European Court
of Human Rights alleging an administrative practice consisting of
State-authorised targeted assassination operations against perceived opponents
in Russia and on the territory of other States, including other
member States of the Council of Europe, as well as an administrative
practice of failing to investigate these operations and of deliberately mounting
cover-up operations.
It
remains for the Court to determine whether such a practice can be
proven and the possible violations of the European Convention on
Human Rights (ETS No. 5, “the Convention”) involved. In my view
there are sufficient grounds to consider that Russia has implemented
and continues to implement an official “transnational persecution
programme”.
37. Russia’s war of aggression against Ukraine has led to increased
repression within its borders. The persecution and criminalisation
of anti-war protesters and the “partial mobilisation” of men for
military service have pushed many to flee the country and to be
potential victims of Russian transnational repression. For instance,
law enforcement officers in Kazakhstan repeatedly detained Evgeniya
Baltatarova, a journalist from Russia’s Buryat region, who was placed
on a wanted list by Moscow for disseminating “fake news” about the Russian
army. Her detention was explained by authorities as complying with
the Minsk Convention. Kazakhstan also deported Mikhail Zhilin, an
officer who had fled military conscription, because his name appeared
on a wanted list for “desertion”. He was deported after his claim
to asylum was denied.
People fleeing
forced military service in the Russian army may face obstacles applying
for asylum in Europe and be more vulnerable to transnational repression.
3.2. Türkiye
38. Freedom House included Türkiye
in its list of States with a long arm of transnational repression.
The extent is not comparable to Russia, but still, Türkiye employed
some of the tools of transnational repression. The Turkish campaign
was found to rely on renditions
and abuse of Interpol Red
Notices,
and to be “remarkable for
its intensity, its geographic reach, and the suddenness with which
it escalated [since] the coup attempt […] in July 2016…”.
After blaming Fethullah Gülen for the
attempted coup, Türkiye implemented a consistent policy of pursuing
anyone related to the “Gülen movement”. Freedom House was able to
identify 58 people rendered from 17 countries. In September 2022,
a businessman named Uğur Demirok was reported to have been abducted
in Baku by the Turkish intelligence agency (MIT) and rendered to
Türkiye. From the perspective of the Turkish State, these people
are legitimate counterterrorism targets. Türkiye’s officials openly claim
credit for these operations and praise the role of the MIT.
Interpol notifications led to the
detentions of German-Turkish journalist Hamza Yalçın in August 2017,
and the unlawful deportations of two individuals accused of membership
in the PKK from Serbia and Bulgaria.
39. Türkiye was named not only for renditions, abusing extradition
proceedings and Interpol Red Notices but also for co-opting other
States to deport or transfer persons. On 6 September 2018, the Republic
of Moldova transferred seven teachers of Turkish nationality, circumventing
domestic and international law.
Kosovo* was co-opted
to illegally deport six Turkish teachers to Türkiye on 29 March
2018.
In both cases, there were accusations
that the Turkish Government received high-level political support
for these operations, but only the heads and officials of the intelligence
agencies were blamed.
40. NGOs have also highlighted the role of the Turkish intelligence
agency in threats and intimidation of Turkish opposition members
and journalists in exile and called on States to prevent any co-operation
with the Turkish secret service.
Can Dündar, then editor
in chief of the daily Cumhuriyet, left the country for Germany in
June 2016 after being sentenced to prison for leaking national security
information. Since going into exile, he has faced numerous threats.
He and other Turkish journalists in Germany have received protection
from German authorities.
41. It has also been reported that Türkiye is using anti-terror
financing measures as a tool of transnational repression against
persons allegedly affiliated with the Gülen movement. In 2021, the
government adopted asset-freezing decrees targeting some of these
persons living abroad, who as a result faced problems with their bank
accounts or credit cards. Some reported that the Turkish embassy
in their country of residence visited the banks and informed them
about the decrees.
42. Furthermore, Türkiye allowed itself to be co-opted to facilitate
transnational repression originating from non-member States of the
Council of Europe. According to Freedom House, Türkiye became a
more dangerous place to live in 2021 for people targeted by foreign
regimes such as China and Turkmenistan. For instance, in January
2021, several Uyghurs were detained by police in raids in Istanbul
and threatened with deportation to China after participating in
protests outside the Chinese embassy. Another Uyghur activist fled the
country after seeing his name on a list of Uyghur residents in Türkiye
who were wanted by China. He flew to Morocco but was detained there
in response to an Interpol notice. Turkish authorities have also
detained Turkmenistani activists living in Türkiye and threatened
them with deportation unless they ceased their political activities.
As regards the murder
of Saudi journalist Jamal Khashoggi on Turkish soil, although the
initial response was described as “swift and pointed”, Türkiye ultimately
agreed to a request from Saudi authorities to transfer the trial
in absentia being held in connection
with the murder to Saudi Arabia.
43. Following the Russian Federation’s large-scale aggression
against Ukraine in 2022, Türkiye refused to support Sweden and Finland’s
applications to join the North Atlantic Treaty Organisation (NATO),
unless Sweden handed over a set of wanted individuals. On 21 December
2022, Reuters reported that Mevlüt Çavuşoğlu, Turkey’s Foreign Minister
and former President of this Assembly, described at a news conference in
Ankara the decision of Sweden’s Supreme Court to block the extradition
of Turkish journalist Bülent Keneş as a “very negative” development.
President Erdoğan had earlier singled out Mr Keneş’s extradition
as a condition for Türkiye to approve Sweden joining NATO. This
behaviour is unacceptable to all those who support the rule of law
and serves as an example of the type of pressure which some countries
seek to exercise over others to pursue what is essentially another
aspect of transnational repression. Even prior to the Turkish Government’s
statement a pro-government newspaper had revealed Mr Keneş’s home
address and published secretly taken photos in November 2022. Bülent
Keneş is one of the founders of the Stockholm Center for Freedom.
44. In 2023, a law firm, an NGO and the European judges association
Magistrats européens pour la démocratie et les libertés (MEDEL)
announced that they had sent a communication to the Office of the Prosecutor
of the International Criminal Court (ICC), claiming that crimes
against humanity had been or were being committed in Türkiye. The
communication enumerates the abduction of victims from different
countries who were brought to Türkiye in 17 cases of enforced disappearance;
the closure of 72 schools linked to the Gülen movement in 13 States
Parties to the ICC Statute; the discriminatory withdrawal of passports
and the discriminatory non-issuance of ID cards in 29 States, as
crimes that can be prosecuted by the ICC.
In 2020, the UN Working Group on
Arbitrary Detention had concluded that the arrest, detention and
forced transfer to Türkiye of Turkish nationals were arbitrary and
in violation of international human rights norms. It noted a pattern
of targeting those with alleged links to the Gülen movement on the
discriminatory basis of their political or other opinion and recalled
that the widespread or systematic imprisonment in violation of international
law might constitute crimes against humanity.
45. In a letter addressed to me as rapporteur on 6 January 2023,
two members of the Turkish delegation to the Assembly and members
of our committee commented on the allegations of misuse of Red Notices
by Türkiye and other issues mentioned in my introductory memorandum.
They said that Türkiye issued Red Notices requests in accordance
with its international obligations stemming from international law
and its domestic legislation, and that it was unfair to blame member
States for allegedly misusing them. They suggested that my report
should rather focus on Interpol’s internal monitoring system that
does not work properly and transparently.
3.3. Azerbaijan
46. According to Freedom House,
since 2014 Azerbaijan has conducted five renditions, from Ukraine, Georgia,
and Türkiye. In four of the cases, the victim was a journalist or
a journalist’s spouse.
Afgan Mukhtarli, an Azerbaijani investigative
journalist, vanished in May 2017 from Tbilisi and resurfaced in
custody in Baku, after what appeared to be a harrowing cross-border
abduction.
Fikret Huseynli, another
Azerbaijani journalist, claimed that Ukrainian authorities failed
to protect him from the attack and attempted abduction by undercover
Azerbaijani state agents tracking him down in Kyiv in March 2018.
He had previously been detained in Ukraine on the basis of a Red
Notice request by Baku.
47. Well-known blogger and social-media opposition activist, Mahammad
Mirzali, has been repeatedly attacked including being shot, stabbed
and severely beaten. In 2016 he left Azerbaijan and now lives in
France as a refugee. The Azerbaijani authorities have denied any
involvement in these attacks. Reporters Without Borders has called
for the last attempt to murder Mirzali on French territory (12 June
2022) to be addressed by the French and Azerbaijani governments
at the highest level.
48. Incidents of transnational repression by foreign States have
also been reported in Azerbaijan. Apart from renditions to Türkiye
(see above), there have been murders or attempted murders of Azerbaijani
journalists and politicians with suspected involvement of Iran.
In 2011, journalist Rafiq Tagiyev (against whom Iran had issued a
fatwa) was murdered. In March 2023, politician Fazil Mustafa, known
for his anti-Iranian statements, was shot and wounded in Baku.
3.4. Belarus
49. The last example in this context
is Belarus, known for notoriously egregious methods of transnational repression,
such as using crime gangs. Pavel Latushka, a Belarusian opposition
leader living in Warsaw, claimed that Belarusian secret services
employed organised crime gangs to terrorise Belarusian exiles settled in
EU States. In August 2021, Vitaly Shishov, a Belarusian political
activist and dissident who co-founded the Kyiv-based Belarusian
House in Ukraine, was found dead in Kyiv, hanging from a tree in
a park near the place where he lived. His suspicious and unexpected
death raised public concerns about his possible assassination by
Belarusian agents.
EUobserver also reported that President
Lukashenka had planned the assassination of three Belarusian dissidents
in Germany, according to a leaked recording of the then-leader of
the Belarus KGB.
50. The “hijacking” of Ryanair Flight 4978 was another extreme
example of transnational repression. On 23 May 2021, the Belarusian
government diverted this regularly scheduled international passenger
flight (travelling from Athens to Vilnius) to Minsk airport, where
Roman Protasevich, an opposition activist and journalist, and his
girlfriend Sofia Sapega, were arrested by the authorities. The Belarusian
authorities reported an alleged bomb on board, yet Ryanair called
it “a case of state-sponsored hijacking”,
suspecting three passengers
of that flight of being Belarusian agents. An attorney in the United
States charged four senior Belarusian officials with conspiracy
to commit aircraft piracy, for using a false bomb threat to unlawfully
divert the flight in order to arrest the Belarusian dissident.
51. According to Freedom House, Belarus was responsible for 31%
of the transnational repression incidents recorded in 2021. Following
Lukashenka’s fraudulent re-election in August 2020, many opposition
leaders and protesters fled the country and sought asylum in Poland,
Lithuania and Ukraine. Those who fled to Russia were deported to
Belarus. For example, Alyaksey Kudzin, a mixed martial arts fighter
who had allegedly been beaten and shot with rubber bullets while
in police custody in Belarus, was unlawfully deported from Russia
after the European Court of Human Rights had indicated an interim
measure against the extradition having regard to the risk of torture.
4. The
relevant Council of Europe standards
52. None of the Council of Europe
bodies have addressed transnational repression specifically. The
present report is the first to compile legal standards relevant
to these practices.
4.1. The
European Court of Human Rights
53. The Court examined a number
of cases, which could fall into the category of transnational repression, but
has never used this terminology. It remains to be seen whether the
Court would introduce such a legal concept into its case law following
the interstate case of Ukraine brought against Russia (referred
to above) or other cases. At present, its case law contains the
following principles relevant to the issue at hand. Transnational
repression contains an extra-territorial element. This means that
before determining the responsibility for an act of transnational
repression, the Court should first establish whether the alleged
act is attributable to the persecuting State or to the host State.
In
Carter v. Russia, it found
that when they poisoned Mr Litvinenko, Mr Lugovoy and Mr Kovtun
were acting as Russian agents and that they had exercised physical power
and control over Mr Litvinenko’s life in a manner sufficient to
establish a “jurisdictional link” with Russia. Therefore, Russia
bore responsibility for the targeted assassination committed in
the United Kingdom, which undoubtedly constituted a violation of
the substantive aspect of Article 2 of the Convention (right to
life). The Court applied its “personal concept of jurisdiction”,
according to which “a State may also be held accountable for violation
of the Convention rights and freedoms of persons who are in the
territory of another State but who are found to be under the former
State’s authority and control through its agents operating – whether
lawfully or unlawfully – in the latter State”.
In
a series of cases, control over individuals on account of incursions
and targeting of specific persons by the armed forces or police
of the respondent State was sufficient to bring the affected persons
“under the authority and/or effective control of the respondent
State through its agents”.
In the
Carter judgment, the Court clarified that this concept of jurisdiction
should apply with equal force in cases of extrajudicial targeted
killings by State agents acting extra-territorially outside of the
context of a military operation. It also added that “targeted violations
of the human rights of an individual by one Contracting State in
the territory of another Contracting State undermine the effectiveness
of the Convention both as a guardian of human rights and as a guarantor
of peace, stability and the rule of law in Europe” and recalled
that “accountability in such situations stems from the fact that
Article 1 of the Convention cannot be interpreted so as to allow
a State party to perpetrate violations of the Convention on the
territory of another State, which it could not perpetrate on its
own territory”.
By
analogy, any act of physical transnational repression committed by
an agent of the persecuting member State abroad would automatically
engage the international responsibility of that State under the
Convention.
54. As regards the lack of an effective investigation into the
targeted assassination of Mr Litvinenko (procedural aspect of Article
2), the Court established a “jurisdictional link” with Russia with
reference to the criminal proceedings instituted in Russia and to
the fact that Russia retained exclusive jurisdiction over the two suspects.
Since their return to Russia, both enjoy the constitutional protection
of nationals from extradition. The Court also observed that the
United Kingdom, the host State, was prevented from pursuing the
criminal prosecution of the suspects on its territory as a result
of the protection given to them by Russia. Therefore, Russia was
also under a procedural obligation under Article 2 of the Convention
to carry out an effective investigation, even if the death of the
victim had occurred in the United Kingdom.
Applying these principles, any
act of physical transnational repression may give rise to a procedural
obligation under the Convention to investigate such act either where
the perpetrator State opens an investigation on its own or where
it retains exclusive jurisdiction over the suspected individuals.
55. To establish the responsibility of persecuting States for
acts of transnational repression commenced on their territories
but having effects abroad, the Court should also first establish
a jurisdictional link. The cases of
Razvozzhayev
v. Russia and Ukraine,
Udaltsov v. Russia and
Rantsev v. Russia and Cyprus are illustrative
of the extraterritorial effects of a violation of the Convention
which commenced in one State but ended in another. In the first
case, the victim (first applicant) alleged that he had been abducted
in Kyiv and ill-treated by unidentified Russian State agents acting
with the tacit agreement of the Ukrainian authorities, and then
transferred to Russia where he was detained and prosecuted. In the
second case, a woman was trafficked from Russia to Cyprus, where
she eventually died in unexplained circumstances.
56. In the Razvozzhayev case both States had jurisdiction over
the facts which had occurred on their territories, with a special
jurisdictional link with Russia established on the basis of its
authority and control allegedly exercised through its agents operating
abroad. Although the Court found no evidence that the abductors
had acted on behalf of Russia or that the Ukrainian authorities
had been complicit, both States were held responsible under Articles
3 (prohibition of torture) and 5 (right to liberty) of the Convention
for the failure to conduct an effective investigation into the applicant’s
allegations of abduction and ill-treatment committed on their territories
or by their agents. In the Rantsev case the jurisdiction of Russia
was determined by the fact that the alleged trafficking had commenced
on its territory, and therefore triggered its positive and procedural obligations
to protect the victim from trafficking and to investigate the trafficking,
in particular the recruitment of the victim (under Article 4 of
the Convention, which prohibits slavery and forced labour). Russia
was also under a procedural obligation (under Article 2) to co-operate
with the investigation into the victim’s death conducted by Cypriot
authorities, for instance by securing the evidence located on its
territory following a legal assistance request. By analogy, the
Court could examine the responsibility for various forms of transnational
repression originated in persecutor States with effects in other
States, such as issuing politically motivated Interpol Red Notices
or passport cancellation, denial of consular services, intimidation,
surveillance, coercion by proxy, etc.
57. The concept of jurisdiction and responsibility is also applicable
the other way around, in respect of the host States bearing positive
obligations to protect individuals from transnational repression.
The Court settled this principle in the leading case,
Soering, with reference to the decision
to extradite an individual that engaged the State’s responsibility
under the Convention where a risk existed that the person would
be tortured or otherwise ill-treated
or faced the risks
of a flagrant denial of justice in a third State.
The series of cases concerning
extra-legal renditions to the CIA within the territories of Poland,
Romania,
Lithuania
and North Macedonia
have just reconfirmed
this principle, acknowledging the complicity of these States for
serious violations of human rights committed on their territories
by foreign agents. Accordingly, any host State adopting a decision
to arrest, detain and render a person following a request from a
persecuting State might bear responsibility for the removal or transfer,
where there is a real risk of being subjected to a violation of
the Convention (of Articles 2 or 3, or a flagrant breach of Articles
5 or 6) in or by the persecuting State. Similarly, host States should
be regarded as responsible under the Convention for internationally
wrongful acts performed by foreign officials on their territory
with the acquiescence or connivance of their authorities. More generally,
a positive obligation might arise (under Articles 2 and 3) for host
States to protect within their territory potential targets of transnational
repression by agents of third States, if the authorities know or
should know of the existence of a real and immediate risk to the
life or physical integrity of such persons.
58. States can also bear responsibility for being co-opted or
complicit in acts of transnational repression. In the case of
Özdil and others (referred to above),
the Court held the Republic of Moldova responsible for depriving
the applicants of their liberty in a manner amounting to an extra-legal
transfer from its territory to Türkiye, which circumvented all guarantees
offered to persecuted individuals by domestic and international law.
In this and other similar cases, such as
Shenturk
and Others v. Azerbaijan (extra-legal
transfers to Türkiye),
Shorazova v. Malta (freezing assets at
the request of Kazakh authorities, likely tainted by political persecution),
Garabayev v. Russia (arrest
in breach of domestic law and extradition to Turkmenistan with awareness
of a real risk of ill-treatment) or
Abdulkhakov
v. Russia (secret transfer
to Tajikistan with a risk of removal to Uzbekistan) the Court no
longer questioned whether the authorities of the host State retained jurisdiction.
59. Last but not least, the Convention imposes in some circumstances
a duty on States to co-operate effectively with each other, particularly
in transnational cases involving serious breaches of human rights,
such as unlawful killings,
human trafficking
or sexual
abuse of children.
This
duty implies at the same time an obligation to seek assistance and
an obligation to afford assistance and is part of the procedural
obligation arising under Articles 2, 3 and 4 of the Convention.
Therefore, in cases of transnational repression the duty to co-operate
in the investigation of the alleged breach is all the more important
(see the
Carter case, mentioned above).
60. In conclusion, the Court’s case law provides sufficient examples
to delineate the principles of State responsibility for transnational
repression, even if the Court has never used this term in its judgments.
Applying the Court’s case law, a jurisdictional link should be established
between an act of transnational repression and the persecuting State
to determine the responsibility under the Convention. Only then
a violation of the Convention could be found, which could take various
forms from serious human rights violations (killings, kidnappings,
enforced disappearances, renditions, arbitrary detentions, etc.)
to associated violations of privacy, freedom of expression, freedom
of movement, etc. In this context, the Court may also examine the responsibility
of host States on whose territories the acts of transnational repression
occurred. These States may therefore have positive obligations under
the Convention to protect potential victims from acts of transnational
repression and prevent them from occurring. In the end, all Contracting
States have a collective duty to co-operate in the investigation
of serious human rights violations and, therefore, fight against
impunity for acts of transnational repression committed on European
soil.
4.2. The Parliamentary Assembly
61. The most relevant resolutions
and reports of the Assembly, which could be relevant for codifying
and developing principles in the fight against transnational repression,
are the following:
- Resolution
2315 (2019) “Interpol reform and extradition proceedings: building
trust by fighting abuse”, which recalls the need for transparent
international co-operation in criminal law;
- Resolution
2252 (2019) “Sergei Magnitsky and beyond – fighting impunity by
targeted sanctions”, which called upon member States to consider
enacting legal instruments enabling their government to impose targeted
sanctions on individuals reasonably believed to be personally responsible
for serious human rights violations for which they enjoy impunity
on political grounds or owing to corrupt practices;
- Resolution
2161 (2017) “Abusive use of the Interpol system: the need for more
stringent legal safeguards”, in which the Assembly expressed concerns
over the abuse by certain governments of the Red Notice system in
order to persecute members of the political opposition beyond their
borders;
- Resolution
2187 (2017) “Venice Commission’s Rule of Law Checklist”, which encourages
wider and more systematic use of the Venice Commission Checklist
to ensure conformity with basic principles of the rule of law;
62. A report on “Pegasus and similar spyware and secret state
surveillance” is also underway. Some valuable ideas to fight and
prevent transnational repression can be found in all these reports
and resolutions. In
Resolution
2315 (2019), the Assembly welcomed the fact that Interpol had implemented
many recommendations made by the Assembly in its 2017 report aimed
at strengthening the Interpol system and fighting the abuse of Red
Notices and Diffusions. However, it stated that further work still
needed to be done to improve the transparency of Interpol and to
strengthen the accountability of States who frequently abuse Interpol’s
instruments. For instance, Interpol should further improve preventive
and subsequent scrutiny of Red Notices and wanted person diffusions;
further strengthen the appeals procedure before the Commission for
the Control of Interpol’s Files (CCF); consider setting up an independent
appeals body against the decisions of the CCF such as an ombudsperson;
and set up a compensation fund for victims of unjustified Red Notices
and wanted person diffusions. The Assembly also called on member
States to take a set of measures to support further improvements
concerning Interpol, so that it fully respects human rights and
the rule of law whilst remaining an effective tool for international
police co-operation.
4.3. The Committee of Ministers
63. The most relevant document
adopted by the Committee of Ministers, which could be relied upon
in combating transnational repression, is the Guidelines on “Eradicating
impunity for serious human rights violations”.
As far as it is relevant
to the scope of the present report, the Guidelines refer to international
co-operation in combating impunity, calling on “states [to] fulfil
their obligations, notably with regard to mutual legal assistance,
prosecutions and extraditions, in a manner consistent with respect
for human rights, including the principle of “non-refoulement”,
and in good faith.”
5. Proposals to strengthen the fight
against transnational repression
64. During our hearing of 22 November
2022, Mr Bruno Min from Fair Trials welcomed the fact that the Assembly
reports on Interpol had played an influential role in promoting
key reforms and improvements. However, despite recent efforts by
Interpol to improve its rules and procedures to better protect its
systems from misuse, Fair Trials had continued to come across Red
Notices and diffusions that violated human rights in individual
cases. Mr Min pointed to three main reasons for this. First, there
were inadequate systems for performing
ex
ante checks on requests for Red Notices and diffusions
before they were circulated: the Notices and Diffusions Task Force
in Interpol was made of around 30-40 staff while the number of Red
Notices circulated was over 10 000 per year. Second, there were
concerns about the effectiveness of Interpol’s complaints mechanism,
the CCF.
Challenges
regarding its speediness, transparency and the quality of its decisions
remained. Third, there was a lack of clarity on how Interpol’s rules
are interpreted, especially with regard to Article 2 of its Constitution,
which requires Interpol’s systems to be used in ways that are compatible with
international human rights standards. According to Mr Min, there
was still ample room for further improvements, notably concerning
the prior review of diffusions (which can contain exactly the same
request as Red Notices but are not subject to prior review); and
the effectiveness of the
ex ante and
ex post reviews, including by the
Notices and Diffusions Task Force and the CCF. As regards member
States, they should support Interpol by working with the CCF and
complying with its decisions as much as possible (for example deleting
data in national databases where the CCF has decided to delete a
Red Notice or Diffusion), by sharing information about refugee status
and by supporting the internal review mechanisms of Interpol with
additional funding and resources.
65. Mr Vytis Jurkonis from Freedom House Lithuania put forward
several proposals to better fight against transnational repression:
a definition of transnational repression at European level; tracking
cases (including politically motivated extradition requests) domestically;
filtering requests from authoritarian countries, which should be
vetted more thoroughly; a mechanism of intervention through advocacy
work; and suspending certain countries from participating in international
co-operation mechanisms in the criminal field. He also mentioned
as an example of best practices the inter-ministerial mechanism
set up in Lithuania for vetting politically-motivated extradition
requests and its well-established co-operation with human rights
defenders. This example could be replicated in other countries.
66. Freedom House has made several policy recommendations to better
fight against transnational repression.
Governments that host exiles and
targeted diasporas should,
inter alia:
- establish an official definition
of transnational repression to be used by all government agencies;
- develop a plan to spread awareness among law enforcement
agencies, intelligence services, and officials working with refugees
and asylum seekers;
- issue travel advisories about States that engage in transnational
repression;
- develop specific outreach strategies to connect law enforcement
agencies with targeted diaspora communities;
- establish a specific mechanism to track domestic incidents
of transnational repression and identify the perpetrator governments;
- review counterintelligence and law enforcement information-sharing
practices and ensure that they effectively disseminate data about
threats stemming from transnational repression;
- apply additional vetting to extradition requests and Interpol
notices;
- review extradition, legal co-operation, readmission and
return, and intelligence-sharing agreements with governments that
engage in transnational repression;
- screen applications for diplomatic visas to avoid granting
accreditation to diplomatic personnel who have harassed, intimidated
or otherwise harmed exiles or diaspora members;
- restrict the export of surveillance technology;
- strictly regulate the purchase and use of surveillance
tools and protect end-to-end encryption:
- impose targeted sanctions on perpetrators and enablers
of transnational repression;
- use persona non grata designations
to ensure accountability for transnational repression, including
by expelling diplomats who are directly involved in transnational
repression;
- restrict security assistance and arms sales to governments
that perpetrate acts of transnational repression;
- review the processes for issuing warnings and assigning
police protection to individuals;
- commit to respecting the right to seek asylum;
- limit the use of temporary and subsidiary forms of protection
for asylum seekers and instead grant full refugee status, allowing
for family reunification, which reduces the threat of coercion by
proxy;
- include details on the use of transnational repression
in the information about countries of origin that is consulted during
reviews of asylum applications;
- build resilience against the use of spurious terrorism
charges to distort host countries’ asylum and extradition processes;
- fund civil society organisations that monitor incidents
of transnational repression or that provide resources to targeted
individuals or groups.
67. Freedom House’s recommendations for UN member States include:
recognising transnational repression as a specific threat to human
rights; reviewing and revising the protections that are offered
to human rights defenders and other activists who engage with the
UN to better address the risk of transnational repression; and establishing
a special rapporteur on transnational repression, with the required
mandate to have a comprehensive picture of the problem. Other recommendations
are specifically addressed to civil society and technology companies.
68. It is also worth taking into consideration the proposals contained
in the recent “Declaration of Principles to Combat Transnational
Repression” signed by a number of States in March 2023 (see paragraph
14 above).
6. Conclusions
69. The head of the Chechen Republic
Ramzan Kadyrov stated: “This modern age and technology allow us to
know everything and we can find any of you, so don’t make it worse
for yourselves.” This statement illustrates how authoritarian regimes
think and how they implement their plans of transnational repression
abroad. Transnational repression has become a common and institutionalised
practice used by dozens of regimes to persecute dissenters outside
their borders. Not only does it affect human rights of individuals
fleeing persecution, but it also undermines democracy, the rule
of law, and security in the countries where these people have found
refuge. This phenomenon should be acknowledged and fought against,
including by using the existing legal instruments and setting new
standards for the member States of the Council of Europe.
70. There is neither a legal definition of transnational repression
nor settled legal principles to fight this phenomenon. None of the
democratic countries, including European States, has ever addressed
the problem of transnational repression in a systematic fashion.
There have been political statements, condemnations, expulsions
of diplomats, and even economic sanctions following some notorious
cases of transnational repression. However, the States concerned
have acted in a reactive rather than proactive and systematic way.
71. It is undisputed that acts of transnational repression involve
serious breaches of human rights, such as extra-judicial killings,
targeted assassinations, enforced disappearances, kidnappings, and
loss of lives following the use of dangerous substances and tools
(radioactive materials, chemical weapons), etc. Acts of transnational
repression run contrary to the principles of non-refoulement and
the legality of deprivation of liberty. They are often associated
with violations of privacy, freedom of expression, freedom of movement,
etc. The current standards and legal instruments seem insufficient
to stop transnational repression from occurring, especially in some
countries accused of systemic acts of transnational repression.
72. Russia is the most extreme example from the list of these
countries. With its state-sponsored “assassination programme” and
now no longer a member of the Council of Europe, nothing prevents
Russia from continuing its systematic repression of Russian exiles
seeking refuge in Europe. The effects of its transnational repression
policies will be felt for a long time in Europe. Therefore, member
States and Council of Europe bodies should react promptly and decisively
to alleviate these effects and prevent these practices from spreading.
This is especially true in the context of newly emerging trends
to use digital tools for transnational repression, the effects of
which remain unpredictable for the host States.
73. The Assembly should first of all condemn the cases of transnational
repression committed on European soil, some of which originated
in current or former member States. It should also recall that the
European Convention on Human Rights applies to extra-territorial
violations of the right to life and other fundamental rights committed
by formal or secret agents of member States in the territory of
other member States, as well as in the territory of third States
(as long as there is control and authority through these agents).
The Court has recently held that “targeted violations of the human
rights of an individual by one Contracting State in the territory
of another Contracting State undermine the effectiveness of the
Convention both as a guardian of human rights and as a guarantor
of peace, stability and the rule of law in Europe”. Procedural obligations
to investigate these violations may also arise with regard to the
host State, the perpetrator State, or both, depending on the circumstances.
In this context, the Court has also recognised a duty to co-operate
with each other in transnational cases involving serious breaches
of human rights. This should clearly apply to transnational repression
cases. From the perspective of host States, they have the positive
obligation to protect individuals within their jurisdiction from
acts of transnational repression, either by providing specific protection to
identified targets in case of real and immediate risks, or at least
by not giving their acquiescence or connivance to violations committed
by foreign agents in their territory. Furthermore, they have the
obligation not to render, transfer, deport or extradite persons
exposed or vulnerable to transnational repression, particularly
if there is a real risk of a violation of one of the core Convention
rights by the requesting/persecuting State, or a risk of using extra-legal
channels.
74. The Convention provides a robust legal framework according
to which acts of transnational repression should be condemned, investigated
and punished by member States. Perpetrators should be held to account. The
Court will hold member States to account if they do not properly
deal with these cases domestically, including where the repression
has its origins in non-member States.
75. The Assembly should address relevant recommendations such
as those recommended by our experts and Freedom House to member
and observer States, as well as to States whose parliament enjoys
partner for democracy status with the Assembly. For instance, States
should establish an official definition of transnational repression
to be used by all government agencies (law enforcement, intelligence
services, migration and asylum), which would incorporate it in all
their actions and procedures. They should also establish a specific mechanism
to track domestic incidents of transnational repression and identify
the perpetrator governments. Counterintelligence and law enforcement
information-sharing practices should be reviewed to ensure that vulnerable
individuals receive adequate warning and protection.
76. States should apply additional vetting to extradition requests
and Red Notices from the governments that are known to engage in
transnational repression. In this respect, the Assembly should reiterate
the recommendations made to States and to Interpol in its
Resolution
2315 (2019) “Interpol reform and extradition proceedings: building
trust by fighting abuse”, along the lines of the proposals made
by the experts on Interpol procedures.
77. States should also consider further screening applications
for diplomatic visas to avoid granting accreditation to diplomatic
personnel who have harassed or intimidated exiles and diaspora in
the past, often abusing diplomatic immunities. They should envisage
expelling diplomats who have been directly involved in transnational
repression incidents. In terms of accountability, States should
impose targeted sanctions on perpetrators and enablers of transnational
repression, using their Magnitsky-type laws. This should be extended
to the EU sanctions regime.
78. Victims of transnational repression should be protected. In
accordance with the positive obligations imposed by the Convention
(notably under Articles 2 and 3, but also Article 8), States should
improve the procedures to issue warnings and assign police protection
to vulnerable or targeted individuals. They should also take into
account the record of transnational repression of origin States
when deciding on asylum applications.
79. Within the Council of Europe, the Assembly should invite the
competent bodies, first of all the European Court of Human Rights,
but also the Commissioner for Human Rights, to pay specific attention
to the current trends and practices of transnational repression
occurring in member States, including when they originate from non-member
States. The Court should fully apply and develop its case law on
extraterritorial jurisdiction to cover all possible acts of transnational
repression having their origin or producing their effects in member States.
There cannot be any impunity gap for transnational repression committed
within the Convention legal space and attacking the foundations
of democratic societies and the rule of law. The Commissioner should
take into account the transnational repression angle when engaging
with human rights defenders and civil society, including exiles
from Russia and Belarus.
The Assembly’s General Rapporteur
on the situation of human rights defenders should follow the same
approach and address the specific threats faced by Russian and Belarusian
human rights defenders relocated or seeking asylum in member States.
80. Finally, the Assembly should invite the Committee of Ministers
to include this important topic on its agenda, with a view to reviewing
and adapting the existing recommendations and guidelines (including
the
Guidelines
of the Committee of Ministers of the Council of Europe on “Eradicating
impunity for serious human rights violations”) and drawing up a new recommendation to member States
focussed on the fight against transnational repression. The Committee
of Ministers, when supervising the execution of the Court’s judgments featuring
transnational repression, should underline the requirement of individual
accountability of the perpetrators, and call on the States concerned
to adopt general measures to prevent these practices in future.