Transnational repression as a growing threat to the rule of law and human rights
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 23 June 2023 (19th sitting) (see Doc. 15787, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Sir Christopher Chope). Text
adopted by the Assembly on 23 June 2023 (19th sitting).See
also Recommendation 2257
(2023).
1. 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. The Parliamentary Assembly notes that
there are four main methods of transnational repression:
1.1 direct attacks by which an origin
State carries out a targeted physical attack against an individual abroad,
such as assassinations, assaults, enforced disappearances, physical
intimidation or violent forced rendition;
1.2 co-opting other countries to act against a target using
detention, unlawful deportation and other types of forced rendition,
which are authorised through pro forma but meaningless legal procedures. This
method includes misuse of INTERPOL Red Notices, extradition proceedings
and other forms of interstate legal assistance such as anti-money
laundering and anti-terror financing measures;
1.3 impediments to mobility such as passport cancellation
and denial of consular services, preventing the target from travelling
or causing them to be detained;
1.4 threats from a distance, including 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.
2. Reportedly, the number of incidents of physical transnational
repression committed since 2014 had reached 854 by the end of 2022.
These acts were committed by 38 governments in 91 countries around
the world. The most prolific perpetrators of transnational repression
are, according to the non-governmental organisation Freedom House,
the Governments of China, Türkiye, the Russian Federation, Egypt
and Tajikistan.
3. The Assembly is alarmed about the number and gravity of acts
of transnational repression committed in Europe, including on the
territory of some member States. The most egregious example is the
State-sponsored programme to pursue dissidents abroad implemented
by the Russian Federation, which includes notorious targeted, or
attempted, assassinations, such as the poisoning and killing of
former intelligence officer Alexander Litvinenko in 2006 and the
poisoning and attempted assassination of former intelligence officer Sergei
Skripal and his daughter Yulia in 2018 (also known as the “Salisbury
attack”); both occurred in the United Kingdom. With regard to Mr Litvinenko’s
targeted assassination, the European Court of Human Rights (“the
Court”) found in 2021 that the Russian Federation was responsible
for the violation of his right to life under Article 2 of the European
Convention on Human Rights (ETS No. 5, “the Convention”), after
having established that the two persons who poisoned him in the
United Kingdom were Russian agents. Furthermore, there is strong
evidence connecting attacks and killings targeting Chechen dissidents
living abroad to the Chechen Republic and its head, Ramzan Kadyrov.
4. The Assembly is also concerned about the fate of anti-war
protesters and those fleeing forced military service in the Russian
Federation, in the context of the Russian Federation’s war of aggression
against Ukraine and the wave of increasing repression within its
borders. These people fleeing the Russian Federation may become
new targets of Russian transnational repression, particularly if
they are unable to resettle safely or face obstacles applying for
asylum in other countries.
5. The Assembly is also extremely worried about Belarus. The
diversion and forced landing in Minsk of Ryanair flight 4978 on
23 May 2021 to arrest journalist and opposition activist Roman Protasevich
and his companion Sofia Sapega, using a false bomb threat, should
be condemned as a particularly heinous form of transnational repression
akin to air piracy. Belarus was reportedly responsible for 31% of
the transnational repression incidents recorded in 2021. Some of
the opposition leaders and protesters who fled Belarus following
Alexander Lukashenka’s fraudulent re-election in 2020, particularly
those who fled to the Russian Federation, were subject to unlawful
deportation or rendition to Belarus, which shows how the Russian Federation
facilitated Belarus’ campaign of transnational repression.
6. The Assembly is concerned about the fact that Türkiye has
also used some of the tools of transnational repression, particularly
following the coup attempt of July 2016 and its consistent policy
of pursuing, among others, anyone allegedly related to the “Gülen
movement”, which is referred to as the “Fethullahist Terrorist Organisation
(FETÖ)” by the Turkish authorities. The Turkish campaign of transnational
repression has been found to have recourse to rendition, abuse of
extradition proceedings, INTERPOL Red Notices and anti-terror financing
measures, and co-opting other States to deport or transfer persons
unlawfully. In this respect, the European Court of Human Rights
found that in 2018 the Republic of Moldova had illegally transferred
seven teachers of Turkish nationality to Türkiye, circumventing
all guarantees offered by domestic and international law and therefore
breaching their right to liberty guaranteed by Article 5, paragraph
1, of the Convention. Similar findings have been issued by the United
Nations Working Group on Arbitrary Detention regarding transfers
from other territories, including outside Europe. Critics of the
Turkish Government and journalists living in other member States
have reportedly faced threats and intimidation, sometimes requiring
police protection by the authorities of the host State.
7. The Assembly further notes that Azerbaijan has also been accused
of using certain transnational repression techniques, such as rendition
and cross-border abductions, mainly against journalists. Some Azerbaijani
journalists and opposition activists living abroad have reportedly
been subject to threats and assaults. The European Court of Human
Rights has recently found Azerbaijan responsible for an extra-legal transfer
to Türkiye in circumvention of domestic and international law safeguards.
8. The Assembly condemns all forms and practices of transnational
repression, including those directly performed by an origin State
outside its borders and those where an origin State co-opts other
States to act unlawfully against a targeted person in their own
territory. It considers that these practices not only violate numerous
non-derogable and fundamental human rights of the individuals targeted,
but are also a threat to the rule of law, democracy and the national
security of the States where those individuals live and have found refuge.
Acts of transnational repression that are performed by member States
and those that occur or have effects in their territories undermine
the values and principles which the Council of Europe stands for.
9. The Assembly considers that acts of transnational repression
constitute breaches of international human rights law, first and
foremost of the Convention. It recalls that the Convention applies
to extraterritorial violations and 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.
10. The Convention also applies to extraterritorial violations
perpetrated by a member State outside the Convention legal space.
Extrajudicial killings, assaults, enforced disappearances, forced
rendition and abductions violate Articles 2 (right to life), 3 (prohibition
of torture) and 5 (right to liberty and security) of the Convention.
Procedural obligations to investigate and punish the authors of
such violations may arise with regard to the perpetrator State,
the host State or both. In addition, there is a duty of co-operation
between member States in transnational cases involving serious breaches
of human rights.
11. The Assembly recalls that host States have a positive obligation
to protect individuals within their jurisdiction from acts of transnational
repression, by providing specific protection to identified targets
in cases where there are real and immediate risks, and by not being
complicit in violations committed by foreign agents on their territory.
Host States also have the obligation, in accordance with the principles
of non-refoulement and legality,
not to render, transfer, deport or extradite persons vulnerable
to transnational repression, including through the use of extra-legal
channels, particularly if there is a real risk of a violation of
one of the core Convention rights by the requesting State.
12. Finally, other forms of non-physical transnational repression,
such as online intimidation and surveillance, may violate rights
such as the right to respect for private life guaranteed by Article
8 of the Convention. The misuse, on politically motivated grounds,
of interstate legal co-operation mechanisms such as anti-money laundering
and anti-terror financing measures may result in violations of the
right to a fair trial guaranteed by Article 6 of the Convention
and the right to protection of property guaranteed by Article 1
of the Additional Protocol to the Convention (ETS No. 9). This may
in turn lead to financial exclusion of targeted individuals and
non-governmental organisations and effectively prevent them from
conducting their human rights activities and participating in economic
and social life.
13. The Assembly therefore considers that the Convention, as interpreted
by the Court, provides a robust legal framework under which acts
of transnational repression should be condemned, investigated and,
if appropriate, punished by member States. For non-member States
such as Belarus, or former member States such as the Russian Federation,
the Assembly recalls that similar obligations arise under the International Covenant
on Civil and Political Rights and the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, to which both of these countries are parties.
14. The Council of Europe and its member and observer States should
recognise that transnational repression is a global phenomenon attacking
the foundations of democratic societies and the rule of law, and that
strengthened and more co-ordinated action is needed to prevent and
fight it.
15. The Assembly therefore calls on member States as well as other
States in Europe that have reportedly engaged in transnational repression
to:
15.1 carry out an effective
investigation into all allegations of acts of transnational repression, particularly
those concerning violations of the right to life, the prohibition
of torture or the right to liberty, such as killings, assassinations,
enforced disappearances, assaults, ill-treatment, forced rendition, abductions
and extra-legal transfers; and, where appropriate, bring to justice
those responsible for such acts, including any high-ranking officials;
15.2 in cases of extra-legal transfers, including rendition,
obtain information from the requesting State on the situation of
the individual concerned and envisage the possible application of
the Council of Europe’s Convention on the Transfer of Sentenced
Persons (ETS No. 112) or other treaties, which could permit the
return of the individual in case of conviction;
15.3 ensure that victims of transnational repression receive
adequate reparation for the harm suffered, including rehabilitation
and compensation;
15.4 reinforce oversight and accountability mechanisms of the
actions and powers of intelligence agencies and send a message,
from the highest political level, of zero tolerance towards extra-legal transfers,
rendition, abductions and other serious forms of transnational repression;
15.5 as regards member States and the Russian Federation, execute
the judgments of the European Court of Human Rights in which acts
of transnational repression have been found to breach the Convention,
by taking the necessary individual and general measures under the
supervision of the Committee of Ministers.
16. The Assembly specifically calls upon Türkiye to end its intimidation
of Bülent Keneş, to recognise and respect the decision of the Swedish
Supreme Court and curtail its policy of using its veto on Sweden’s membership
to the North Atlantic Treaty Organization (NATO) as a tool of transnational
repression.
17. The Assembly further calls on all member and observer States,
and States whose parliaments enjoy partner for democracy with observer
or partnership status with the Assembly, to:
17.1 establish an official definition of transnational repression
to be used by all government agencies (law enforcement, intelligence
services, migration and asylum) and incorporate it into their actions
and procedures;
17.2 establish a specific mechanism to report or track domestic
incidents of transnational repression occurring within their borders
and identify the perpetrator governments;
17.3 review counter-intelligence and law-enforcement information-sharing
practices to ensure that vulnerable individuals receive adequate
warning and protection;
17.4 apply additional vetting to extradition requests, INTERPOL
Red Notices and other forms of interstate legal assistance, including
anti-money laundering and anti-terror financing measures, from the governments
that are known to engage in transnational repression or have a track
record of frequently misusing INTERPOL and other co-operation mechanisms;
17.5 consider further screening of applications for diplomatic
visas to avoid granting accreditation to diplomatic personnel who
have harassed or intimidated exiles and diaspora members in the
past, and expelling diplomats who have been directly involved in
transnational repression incidents;
17.6 impose targeted sanctions on perpetrators and enablers
of transnational repression, using their Magnitsky-type laws or
similar instruments, in accordance with Resolution 2252 (2019) “Sergei Magnitsky
and beyond – fighting impunity by targeted sanctions”;
17.7 take into account the record of origin States in respect
of transnational repression when deciding on asylum applications
and respect both the right to seek asylum under the 1951 United
Nations Convention Relating to the Status of Refugees and the principle
of non-refoulement;
17.8 ensure that domestic laws provide the tools needed to
apprehend, prosecute and punish perpetrators of transnational repression,
including by increasing the penalties applicable and by exercising
their criminal jurisdiction in cases where the acts of transnational
repression have originated, occurred or produced effects in their
territory, on the basis of the principles of territoriality, and
active and passive personality;
17.9 make use of Council of Europe and other international
instruments on mutual legal assistance to the widest extent possible,
in connection with investigations and criminal proceedings concerning
acts of transnational repression perpetrated in Europe or elsewhere;
17.10 restrict the export of surveillance technology into countries
whose governments are known to engage in transnational repression,
reiterate their commitment to privacy of communications and preservation
of end-to-end encryption, and effectively investigate all cases
of alleged digital transnational repression targeting persons living
in their territory;
17.11 ensure that human rights defenders and activists who
engage with international organisations, including the Council of
Europe, are better protected from the risk of transnational repression.
18. Regarding the abuse of INTERPOL, the Assembly refers to its
Resolution 2315 (2019) “Interpol reform and extradition proceedings:
building trust by fighting abuse” and calls on:
18.1 INTERPOL to:
18.1.1 further
improve transparency by disclosing data that would help to assess
how effective its review mechanisms are and by clarifying 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;
18.1.2 further improve preventive and subsequent review of Red
Notices and wanted persons’ diffusions;
18.1.3 ensure the effectiveness of the reforms of the Commission
for the Control of INTERPOL’s Files (CCF) to ensure better compliance
with its decisions and directions, especially regarding the deletion
of data;
18.2 all member States to:
18.2.1 work with the CCF
and comply with its decisions, for instance by deleting data in
national databases where the CCF has decided to delete a Red Notice
or diffusion;
18.2.2 help INTERPOL remove abusive Red Notices used against
refugees and others in need of international protection, for instance
by sharing information with INTERPOL about their status (with their
consent);
18.2.3 put in place effective safeguards to ensure that decisions
on immigration and asylum applications are not influenced by abusive
Red Notices or diffusions;
18.2.4 support the internal review mechanisms of INTERPOL (Notices
and Diffusions Task Force and the CCF) with additional funding and
resources.
19. The Assembly invites the Commissioner for Human Rights of
the Council of Europe to pay specific attention to transnational
repression when engaging with human rights defenders and civil society,
particularly exiles from the Russian Federation and Belarus.
20. The Assembly invites its General Rapporteur on the situation
of human rights defenders to take into account the current trends
and practices of transnational repression potentially targeting
human rights defenders, including when they originate from non-member
States.
21. The Assembly also invites the Court to fully apply and, if
need be, 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 should
be no gap in protection against transnational repression committed
within the Convention legal space.
