(To be checked against delivered speech)

Speaking notes for the press conference on the report under Article 52 of the ECHR

Wednesday, 1 March at 12h30

Thank you very much for coming. The subject of the press conference today is the publication of my report under Article 52 of the European Convention on Human Rights, which deals with allegations of what is commonly described as “secret detentions and rendition flights” in Council of Europe member states.

Before commenting on the content of my report, I should like to clarify the parameters of my inquiry. We need to bear in mind that the European Convention on Human Rights prohibits secret and unlawful detention, false imprisonment and torture. The Council of Europe member states are obliged to enforce the Convention through law – which means that what has allegedly happened is illegal under the internal law of all our member states. The primary responsibility to prevent, investigate and punish any such violations of human rights therefore lies with the authorities of the member states. Consequently, the focus of my inquiry was on whether our member states comply with their responsibilities in this regard. These obligations are of a positive nature, which means that the member states are obliged to actively prevent such human rights violations from taking place, and not simply react if they stumble upon them accidentally.

I am fully aware that the allegedly committed illegal acts would have taken place in the context of the fight against terrorism, which is one of the priorities of the Council of Europe, but the threat of terrorism cannot justify disregard for the European Convention on Human Rights. Blatant violations of human rights, such as secret detention and torture, are not only morally wrong and illegal, they are dangerous because they undermine the long term effectiveness of our fight against terrorism.

I am also fully aware that most allegations concern alleged activities of agencies belonging to an allied country which is an observer state to the Council of Europe. I strongly support cooperation between Europe and the United States of America on all issues and especially the fight against terrorism but I also insist that European governments should have sufficient confidence to participate in such cooperation as equal partners and not play the role of the proverbial three brass monkeys.

The report which is made public today contains an analysis of the replies received by the governments of the 46 member states to my letter of last November. In the letter I asked the governments to respond to three sets of questions:

First, how their internal laws ensure that foreign agencies operating on their territory are subject to adequate controls.

Second, whether their internal laws provide adequate safeguards against unacknowledged, that is secret, deprivation of liberty.

And third, how their internal laws ensure an adequate response to alleged violations of human rights, especially those committed by foreign agencies.

Against this background, I also asked the governments to respond to the question whether, in the period since 1 January 2002, any of their officials have been involved, by action or omission, in any secret deprivation of liberty or transport of any secretly detained individual, including any such secret deprivation of liberty committed or instigated by a foreign agency. I also asked whether any investigations were underway or finished.

It is certainly encouraging that we have received the replies from all 46 member states. On the other hand, not all replies can be qualified as complete and fully satisfactory, which means that a number of countries will receive follow-up letters with specific further inquiries. The report contains concrete information on which countries failed to reply to which part of the inquiry. I have no doubt that our member states will continue to be cooperative, and that very soon we will not only have a complete picture of where we are today but where we should be going tomorrow in order to ensure that violations of human rights such as those which have been alleged not only do not happen but also cannot happen.

For the time being, the analysis of the replies received already indicates that there are several areas of general concern.

First, it would appear that most of Europe is a happy hunting ground for foreign security services. While most of our member states have mechanisms to supervise the activities of their domestic intelligence agencies as well as the presence of foreign police officers on their territory, hardly any country, with the clear exception of Hungary, has any legal provisions to ensure an effective oversight over the activities of foreign security services on their territory. In Hungary, the competent authorities are instructed by law to detect any activities of foreign secret services interfering with or threatening the sovereignty, or the political, economic or other important interest of Hungary.

The second concern is that Europe’s skies appear to be excessively open. Very few countries seem to have adopted an adequate and effective way to monitor who and what is transiting through their airports and airspace. Indeed, no member state appears to have established any kind of procedure in order to asses whether civil aircraft are used for purposes which would be incompatible with internationally recognised human rights standards. This is alarming because the explanations provided on the specific point of controls over aircraft allegedly used for rendition show that existing procedures do not provide adequate safeguards against abuse.

The third general concern arising from the analysis of the replies is related to the existing rules on jurisdiction and state immunity, which create considerable obstacles for effective law enforcement in relation to the activities of foreign agents, especially when they are accredited as diplomatic or consular agents. The principle of state immunity is of course recognised under public international law. But this being said, immunity cannot mean impunity. International and national courts have already recognised exceptions to state immunity in the case of torture, and this could be extended to other serious violations of human rights, such as enforced disappearances which, under the Statute of the International Criminal Court, may be qualified as a crime against humanity.

In addition to these more general comments, I should like to mention four countries which have also been highlighted in the preliminary information document of 24 January by Dick Marty, namely Bosnia and Herzegovina, Germany, Italy and former Yugoslav republic of Macedonia. These four countries were the subject of the most detailed and documented allegations of rendition known so far. Regrettably, with the exception of Germany, they have missed the opportunity to provide complete and adequate replies and dispel all doubts about their alleged misconduct. It is difficult to understand how their replies could omit to mention the cases of alleged renditions which were not only mentioned by Dick Marty, but have also been dealt with by their judiciary or were the subject of requests for legal cooperation by another Council of Europe member state.

Similarly, the reply received from Poland – a country mentioned in the initial allegations on the existence of secret prisons – is disappointing, and with the best of will cannot be qualified as adequate in terms of the inquiry.

I will conclude by stressing that this report is not an end, but rather the beginning of a process. I shall continue with my inquiry in the case of individual countries which provided incomplete or inadequate replies, but I also intend to formulate concrete proposals for action at the Council of Europe level. This could in particular include standard-setting activities in the three areas mentioned above, namely the oversight over the activities of foreign agencies, reinforced safeguards against an abusive use of civil aircrafts and possible limitations to state immunity in the case of serious human rights violations.

I am now ready to answer your questions.