Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations
- Author(s):
- Parliamentary Assembly
- Origin
- 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).
- Thesaurus
1. The Parliamentary Assembly considers
that judicial and parliamentary scrutiny of a 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 and Recommendation 1754 (2006) on alleged secret detentions
and unlawful inter-state transfers of detainees involving Council
of Europe member states, and Resolution 1562 and Recommendation
1801 (2007) on secret detentions and illegal transfers of detainees
involving Council of Europe member states: second report, of the Assembly).
4. The Assembly recognises the need for states to ensure effective
protection of secrets affecting national security. It considers,
however, 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 “whistle-blowers”
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 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 these disclosures are made in such a way as to respect the
personal safety of informers, 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 its 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 German Government persisted
in withholding the information requested by the commission, to the
point that the Federal Constitutional Court, following an application
by opposition representatives, was forced to censure the government’s
behaviour; deplores, however, the fact 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
Groupto establish the truth
about the involvement of the British authorities in cases of illegal
transfers of detainees concerning the United Kingdom;
12.4 deplores the fact 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 while 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.
