The Article 52 inquiry was launched against the background of reports alleging involvement by States Parties in unlawful deprivation of liberty of terrorist suspects and their transport in or through their territory by or at the instigation of foreign agencies (“secret detention”, “extraordinary rendition”). States were asked to explain how their internal law ensured the effective implementation of the ECHR on four issues:
1. adequate controls over acts by foreign agents in their jurisdiction;
2. adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents;
3. adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents;
4. whether since 1 January 2002 any public official has been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation is under way or has been completed.
On the basis of an analysis of the replies to Questions 1, 2 and 3, the first conclusion is that all forms of deprivation of liberty outside the regular legal framework need to be defined as criminal offences in all States Parties and be effectively enforced. Offences should include aiding and assisting in such illegal acts, as well as acts of omission (being aware but not reporting), and strong criminal sanctions should be provided for intelligence staff or other public officials involved in such cases.
However, the most significant problems and loopholes revealed by the replies concern the ability of competent authorities to detect any such illegal activities and take resolute action against them. Four main areas are identified where further measures should be taken at national, European and international levels:
– the rules governing activities of secret services appear inadequate in many States; better controls are necessary, in particular as regards activities of foreign secret services on their territory;
– the current international regulations for air traffic do not give adequate safeguards against abuse. There is a need for States to be given the possibility to check whether transiting aircraft are being used for illegal purposes. But even within the current legal framework, States should equip themselves with stronger control tools;
– international rules on State immunity often prevent States from effectively prosecuting foreign officials who commit crimes on their territory. Immunity must not lead to impunity where serious human rights violations are at stake. Work should start at European and international levels to establish clear human rights exceptions to traditional rules on immunity;
– mere assurances by foreign States that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanisms need to be set out in agreements and national law in order to protect ECHR rights.