Provisional
edition
Abuse of state secrecy and national security: obstacles
to parliamentary and judicial scrutiny of human rights
violations
Resolution 1838 (2011)1
1. The
Parliamentary Assembly considers that judicial and
parliamentary scrutiny of government and its agents is of
vital importance for the rule of law and democracy. This also
applies especially to so-called special services whose
activities are usually kept secret. State security and
intelligence services, the need for which cannot be put into
doubt, must nonetheless not become a “state within the state”,
exempted from accountability for their actions. Such lack of
accountability leads to a dangerous culture of impunity, which
undermines the very foundations of democratic
institutions.
2. In
combating terrorism, governments are increasingly invoking
“state secrecy” or “national security” in order to ward off
parliamentary or judicial scrutiny of their actions.
3. In
some countries, in particular the United States, the notion of
state secrecy is used to shield agents of the executive from
prosecution for crimes such as abduction and torture, or to
stop victims from suing for compensation. The United States
also refused to co-operate, in particular, with the judicial
authorities of Germany, Lithuania and Poland in the criminal
investigations launched in those countries in view of numerous
elements of proof of abductions, secret detentions and illegal
transfers of detainees (see
Resolution 1507 (2006) and
Recommendation 1754 (2006) and
Resolution 1562 (2007) and
Recommendation 1801 (2007) of the Assembly).
4. The
Assembly recognises the need for states to ensure effective
protection of secrets affecting national security. But it
considers that information concerning the responsibility of
state agents who have committed serious human rights
violations, such as murder, enforced disappearance, torture or
abduction, does not deserve to be protected as secret. Such
information should not be shielded from judicial or
parliamentary scrutiny under the guise of “state secrecy”.
5. The
Assembly believes that there is no reason why judicial and
parliamentary institutions should be less trusted than state
executive bodies and their agents where the protection of
legitimate secrets is concerned. As Canada demonstrated in the
Maher Arar case, it is possible to put in place special
procedures for the supervision of the activities of the
special services guaranteeing both the adequate protection of
legitimate state secrets and the protection of fundamental
rights and freedoms.
6.
Parliamentary supervision of the security and intelligence
services, both civilian and military, is either non-existent
or grossly inadequate in many Council of Europe member states.
The permanent or ad hoc parliamentary commissions set up in
several countries to oversee the activities of the secret
services are hampered by a lack of information, which is under
the exclusive control of the executive itself, and most often
of a very small circle within the latter.
7. The
Assembly welcomes the growing co-operation between different
countries’ secret services, which constitutes an indispensible
tool to confront the worst forms of organised crime and
terrorism. This international co-operation should, however, be
accompanied by equivalent co-operation between oversight
bodies. It is unacceptable that activities affecting several
countries should escape scrutiny because the services
concerned in each country invoke the need to protect future
co-operation with their foreign partners to justify the
refusal to inform their respective oversight bodies.
8. The
media play a vital role in the functioning of democratic
institutions, in particular by investigating and publicly
denouncing unlawful acts committed by state agents, including
members of the secret services. They rely heavily on the
co-operation of “whistleblowers” within the services of the
state. The Assembly reiterates its calls for adequate
protection for journalists and their sources (Recommendation
1950 (2011 on the protection of journalists' sources) and for
“whistle-blowers” (Resolution 1729 (2010) and
Recommendation 1916 (2010) on the protection of
“whistle-blowers”).
9. The
Assembly can only welcome the publication, in particular via
the “Wikileaks” site, of numerous diplomatic reports
confirming the truth of the allegations of secret detentions
and illegal transfers of detainees published by the Assembly
in 2006 and 2007. It is essential that such disclosures are
made in such a way as to respect the personal safety of
informers, human intelligence sources and secret service
personnel. The appearance of such websites is also the
consequence of insufficient information being made available
and a worrying lack of transparency of governments.
10. In
some circumstances, in particular in the framework of the
fight against terrorism, measures restricting freedom and
violating fundamental rights are taken against suspected
individuals who are not even informed of the – “secret” –
grounds for suspicion on which these measures are based and do
not have the possibility to seize an independent appeals
mechanism. The Assembly reiterates its appeal in
Resolution 1597 (2008) on United Nations Security Council
and European Union blacklists, to the competent United Nations
and European Union bodies to reform the “blacklisting”
procedures, putting an end to such arbitrary methods and
putting in place mechanisms that are both effective and
respectful of the rule of law in order to neutralise persons
suspected of supporting terrorism.
11. With
regard to judicial inquiries, the Assembly:
11.1.
welcomes the inquiries conducted professionally by the
competent German and Italian authorities, which have shed
considerable light on the abductions of Khaled El-Masri and
Abu Omar;
11.2.
welcomes the friendly settlements reached by the British
authorities with the victims of abuses committed by the
British services and urges all interested parties to agree
immediately on a framework satisfying the requirements of
the European Convention on Human Rights (ETS No. 5)
regarding the duty to investigate allegations of torture for
the special inquiry being carried out under the aegis of Sir
Peter Gibson (announced by the Prime Minister in July
2010);
11.3.
urges the Lithuanian, Polish, Portuguese and Spanish
prosecuting authorities to persevere in seeking to establish
the truth about the allegations of secret CIA detentions and
urges the American authorities to co-operate with them;
11.4.
calls on the judicial authorities of Romania and of “the
former Yugoslav Republic of Macedonia” to finally initiate
serious investigations following the detailed allegations of
abductions and secret detentions in respect of those two
countries, and on the American authorities to provide
without further delay the judicial assistance requested by
the prosecuting authorities of the European countries
concerned.
12. With
regard to parliamentary inquiries, the Assembly:
12.1.
welcomes the determination of many members of the commission
of the German Bundestag responsible for investigating
the alleged involvement of the German services in CIA
actions, while regretting that the government persisted in
withholding the information requested by the commission, to
the point that the Federal Constitutional Court, following
an application by the opposition representatives, was forced
to censure the government’s behaviour; deplores, however,
that the end of the legislature did not allow for the
commission’s work to continue after the judgment, as it was
dissolved and not reconstituted;
12.2.
welcomes the inquiry by the national security and defence
committee of the Lithuanian Seimas which established
that, at the request of the CIA, the conditions were created
for holding a detainee in Lithuania, while noting that to
date the inquiry has been unable to establish whether people
were actually detained and ill-treated in that place, and
whether Lithuanian senior officials were aware of the CIA
actions in collaboration with agents of the Lithuanian
secret service (SSD);
12.3.
welcomes the untiring efforts of the All Party Parliamentary
Group to establish the truth about the involvement of
the British authorities in cases of illegal transfers of
detainees concerning the United Kingdom;
12.4.
deplores that the Polish and Romanian Parliaments confined
themselves to inquiries whose main purpose seems to have
been to defend the official position of the national
authorities;
12.5.
is surprised that the Parliament of “the former Yugoslav
Republic of Macedonia” considered it unnecessary to launch
an inquiry into the El-Masri case, in the light of the clear
findings of the European and German inquiries on this
subject.
13. With
regard to procedures for monitoring the secret services in
general, the Assembly calls on Council of Europe member and
observer states still lacking equivalent bodies to set up:
13.1. a
parliamentary mechanism for monitoring the secret services,
while ensuring that it has sufficient access to all the
information needed to discharge its functions whilst
respecting a procedure which protects legitimate secrets;
13.2.
special procedures so that legitimately secret information
can be handled without endangering state security in
criminal or civil proceedings concerning the activities of
special services;
13.3.
an adversarial procedure before a body allowed unrestricted
access to all information, to decide, in the context of a
judicial or parliamentary review procedure, on whether or
not to publish information which the government wishes to
remain confidential.
14. With
regard to international co-operation between oversight bodies,
the Assembly calls on parliaments participating in the
development of the future “Network of European expertise
relating to parliamentary oversight of security and
intelligence services” to consider widening the terms of
reference of the future network and the range of participants
in order to make it an effective instrument of co-operation
between the competent bodies of all Council of Europe member
and observer states, making it possible to remedy the
shortcomings in parliamentary oversight resulting from
increased international co-operation between the services in
question.
1 Assembly debate on 6 October
2011 (34th Sitting) (see Doc.
12714, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Marty). Text adopted by the
Assembly on 6 October 2011 (34th Sitting).
See also
Recommendation 1983 (2011). |