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CIA-Kidnappings: Document 14483/06, Classified Restreint UE

 

Introduction

 

This page lists the correspondence between representatives of the European Union and the site owner with regards to public access to document 14483/06, Classified Restreint UE of the Council of the European Union. The Council has classified this document and refused to grant public access to it.

 

Events in Reversed Chronological Order

 

October 14th, 2010 - Decision of the European Ombudsman closing his inquiry into complaint 523/2009/TS

December 18th, 2009 - Letter & Report on the Inspection at the EU Council

October 27th, 2009 - Letter/Observation sent to European Ombudsman

October 14th, 2009 - 2nd Reply by the European Ombudsman

September 28th, 2009 - Letter to the European Ombudsman

September 21st, 2009 - Reply by the EU Council

September 13th, 2009 - Letter to the EU Council & the European Ombudsman

May 18th, 2009 - Memorandum by the Council

March 30th, 2009 - Reply by the European Ombudsman

February 28th, 2009 - Complaint to the European Ombudsman

January 19th, 2009 - Reply Adopted by the Council

January 6th, 2009 - Reply to Confirmatory Application prolonging time limit

December 4th, 2008 - Confirmatory Application for Public Access

November 19th, 2008 - Reply from Council following Document Request (First mentioning of 14483/06)

 

Correspondence/History

 

October 14th, 2010 - Decision of the European Ombudsman closing his inquiry

Letter & Report by the European Ombudsman

 

“[…] 20. As a result of the inspection of the document in question, the Ombudsman was able to check whether the Council’s statement of reasoning was sufficient in light of the contents of the document. The document in question contains a draft reply to a letter dated 3 October 2006 from the European Parliament concerning the Council’s contacts with the US administration and, as an annex, an analysis regarding the applicable legal framework. The document deals with several highly sensitive issues concerning the fight against terrorism, and it sets out positions of both parties to the discussions. It contains a detailed analysis of the various issues which were discussed. On this basis, the Ombudsman concludes that, in this case, the statement of reasons set out by the Council for applying the exception based on the protection of public interest as regards international relations was sufficient. The Ombudsman considers that the brevity of the statement of reasons is acceptable in light of the fact that mentioning additional information, in particular making reference to the contents of the document concerned beyond what is stated above, would negate the purpose of the exception.

 

“21. With regard to the refusal of partial access to the document, the Council expressly stated, first, that this possibility had been considered, and, second, that the reason for rejecting that possibility was that that the content of the document forms an inseparable whole. In light of the contents of the document, the Ombudsman considers that the reason given by the Council for rejecting partial access is adequate.

 

“22. In light of the foregoing, the Ombudsman considers that, despite the relative brevity of the Council’s statement of reasons for the decision refusing access, the statement of reasons was adequate in view of the contents of the document and of the fact, confirmed by the Ombudsman's inspection, that the contents of the document form an inseparable whole. The Council therefore duly complied with the obligation to provide an appropriate statement of reasons for those decisions.

 

“23. On the basis of the above, the Ombudsman concludes that there was no maladministration by the Council. […]”

 

 

December 18th, 2009 - Letter & Report on the Inspection at the EU Council

 

[…] On 8 December 2009, the Ombudsman’s representatives carried out an inspection of a total of eight documents, which were the subject of three different complaints.

 

Three of these documents were classified as “RESTREINT UE”. The present inspection report concerns the inspection of the document subject of complaint 523/2009/TS.

 

Representatives from the Council:

 

- Mrs Csilla Fekete, General Secretariat, Legal Service (morning)

- Mr Morten Knudsen, General Secretariat, DG E, External and Political-Military Affairs (morning)

- Mrs Irene Simantoni, General Secretariat, DG H, Justice and Home Affairs (morning)

- Mr Cornelis Boer, General Secretariat, (afternoon)

 

Representatives from the Ombudsman’s Office:

 

- Mr Fergal Ó Regan, Head of Legal Unit

- Mr Olivier Verheecke, Principal Legal Adviser

- Mrs Tea Sevón, Legal Officer (morning)

 

The inspection took place in the Justus Lipsius building of the Council (room 70.4) and began at 9.45 h.

 

As regards complaint 523/2009/TS, the inspection concerned document “14483/06 (RESTREINT UE)”. […]

 

 

October 27th, 2009 - Letter/Observation sent to European Ombudsman

 

Dear Mr. Diamandouros,

 

on October 14, 2009, you provided me with a copy of the Council’s opinion with regards to complaint 523/2009/TS. In your letter, you invited me to send you my observations on the Council’s position.

 

In my original request from July 23, 2008, I asked the Council to identify EU documents that contain information on the illegal kidnapping, detention and transportation of individuals by U.S. federal agencies, using the territory and airspace of the European Union. The Council identified document 14483/06 as responsive to my request. Ultimately, it refused public access to the document referring to Article 4 (1)(a) of Regulation 1049/2001, stating that public access to the document would “undermine international relations” and that it would be “detrimental to the good functioning of the relations between the EU and the US”. In its opinion, the Council followed its arguments that it had previously used in the discussion about public access to document COREU CFSP/SEC/1126/06 (Complaint 944/2008/OV).

 

With regards to the Council’s position, I would like to make the following observations:

 

The Council is using the aforementioned Article 4 (1) (a) of the Regulation as a pretext in order to shield information about organized and widespread criminal activities from public scrutiny. Rather than serve the public interest of its citizens, the Council serves the interest of U.S. federal agencies and individual European agencies, which have been involved in the illegal kidnapping, detention and, most probably, the torture of EU and non-EU citizens.

 

The Council refuses to acknowledge that there is a public interest in the information contained in the document and that the public has the valid right to access these documents, which contain information about such illegal activities. National and international laws have been repeatedly violated by U.S. and EU federal agencies over a period of several years. Instead of revealing the extent of the criminal activities and the involvement of EU governments, the Council is trying to hide the information because it would be embarrassing and because it might have legal consequences for certain government officials, who were involved in these activities.

 

It is my belief that the document should be released to the public in order to know the extent of criminal activities that have taken place on the territory of the European Union. Your inspection of the documents, which are issue of my complaints, will further prove the necessity of a greater transparency with regards to the involvement of EU countries in the CIA rendition program.

 

Sincerely yours,

 

Martin Ottmann

 

 

October 14th, 2009 - 2nd Reply by the European Ombudsman

 

Dear Mr. Ottmann,

 

Please find enclosed the opinion that I have received from the Council of the European Union concerning your complaint of 28 February 2009.

 

In my letter of 30 March 2009 to the Council I requested to inspect the document to which you have demanded public access. I stated that I would like to carry out this inspection before the Council submitted its opinion.

 

The inspection in complaint 523/2009/TS has not yet taken place due to the Council’s position as regards the procedure to be followed for the inspection. I will discuss the procedural issues related to the Ombudsman’s inspections on 14 October 2009 with the Council.

 

However, to facilitate the efficient handling of my inquiry, I have decided to register the enclosed letter from the Council as its opinion on your complaint 523/2009/TS. If you wish to make any observations on the opinion, please send them to me before 30 November 2009.

 

Yours sincerely,

 

P. Nikiforos Diamandouros […]

 

 

September 28th, 2009 - Letter to the European Ombudsman

 

Dear Mr. Diamandouros,

 

on March 30, 2009, you have written in a letter that you had received my complaint No. 523/2009/TS and that you have asked the concerned EU agency, the Council of the European Union, to submit its position on the subject by June 30, 2009. Furthermore you stated that, upon receipt of its opinion, you would give me the chance to state my own position on the dispute over the release of the concerned document.

 

Recently and purely by chance, I discovered on the Internet the draft of a statement by the EU Council in connection with my complaint. The draft was dated May 18, 2009.

 

As I have not received any communication from you with regards to that matter since your March letter, I kindly would like to ask you if you have indeed received a memorandum by the Council, discussing its position over the release of the document in question. If this should be case, I am more than happy to submit you my own position over the EU Council’s response.

 

With regards to Complaint 944/2008/OV, you stated in a letter from February 26, 2009 that you have asked the Council to allow you to inspect the document, which forms the basis of my complaint. Has the Council in the meantime provided you with the relevant document and did you have the chance to inspect it?

 

Thank you in advance for the information.

 

Sincerely yours,

 

Martin Ottmann

 

 

September 21st, 2009 - Reply by the EU Council

 

Dear Mr Ottmann,

 

In response to your e-mail dated 13 September 2009 sent to the General Secretariat of the Council, we would kindly like to draw your attention to the fact that your complaints 523/2009/TS and 944/2008/OV are currently pending before the Ombudsman precisely on the matters raised in your message. Therefore, in order not to affect the Council’s position in those proceedings, we are at present not in position to provide you with an answer to your queries.

 

Marc Lepoivre

Conseil de l'Union Européenne

 

 

September 13th, 2009 - Letter to the EU Council & the European Ombudsman

 

Dear Sirs,

 

I am in receipt of your memorandum from May 18th, 2009 with regards to my complaint No. 523/2009/TS to the European Ombudsman. The issue of my complaint is the Council’s refusal to grant access to document 14483/06 (RESTREINT UE).

 

Earlier, I had filed a similar complaint (No. 944/2008/OV) to the European Ombudsman with regards to the Council’s refusal to grant me access to document COREUCFSP/SEC/1126/06 (RESTREINT UE). As you are aware, I am seeking information on the “CIA’s rendition program” in Europe.

 

In your memorandum you followed the arguments, which you had expressed earlier with regards to document COREUCFSP/SEC/1126/06 (RESTREINT UE). Specifically, you stated that “[t]he exceptions set out in Article 4 (1) of the Regulation, including the protection of public interest as regards international relations, are framed in mandatory terms. In consequence, once it is established that the requested document falls within the sphere of international relations and that the protection of the invoked interest would be impaired if the document were to be disclosed, the institution must refuse public access. […]”

 

Furthermore, you stated that “[t]he document is classified as RESTREINT UE, indicating that its unauthorised disclosure could be disadvantageous to the interests of the European Union or one or more of its Member States. […]”

 

With regards to your position not to disclose the contents of the two documents, I hereby would like to ask you to respond to three questions that I have in connection to a) the classification status “RESTREINT UE” and b) the protection of international relations.

 

1) Have there ever been cases, where the Council decided to declassify a document, which had been initially classified as “RESTREINT UE” - to the effect, that it finally became - at least partially - accessible to the public?

 

2) Since I had originally filed my requests for access to the documents 14483/06 and COREUCFSP/SEC/1126/06, has the Council ever tried to obtain an agreement with the parties, whose interests you still seek to protect, in order to be able grant at least partial disclosure of the documents? Or in other words, since the new administration in the United States took office in January of 2009, has the Council communicated with the U.S. government in order to obtain a mutual agreement for a possible public disclosure of the above-mentioned documents and to obtain more information on the “CIA rendition program” - so as to satisfy the public interest in information about such criminal activities and at the same time to preserve good international relations?

 

3) Prior to January 20th, 2009, has the Council ever obtained information or documents from the United States government that have acknowledged the existence of so-called “black sites” and CIA operated prisons in member countries of the European Union?

 

Sincerely yours,

 

Martin Ottmann

 

 

May 18th, 2009 - Memorandum by the Council

 

[…] 8. The exceptions set out in Article 4 (1) of the Regulation, including the protection of public interest as regards international relations, are framed in mandatory terms. In consequence, once it is established that the requested document falls within the sphere of international relations and that the protection of the invoked interest would be impaired if the document were to be disclosed, the institution must refuse public access. According to constant case law, the institution enjoys a wide discretion in the context of a decision refusing access founded on the protection of the public interest concerning international relations.

 

9. It is in the above legal framework that the Council’s statement of reasons for refusing public access has to be appreciated.

 

10. As stated earlier, the document in question relates to an ‘I’ item note containing a draft reply to a letter by the European Parliament’s Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners dated 3 October 2006, in which the Temporary Committee requested information from the Council concerning discussions between the Council bodies and the US authorities concerning measures to combat terrorism and the legal approach followed by both sides. As it appears from the letter, information on this subject had been exchanged between the Council and the European Parliament confidentially, in order to preserve the sensitive contents concerned.

 

11. Document 14483/06 contains elements for a reply to the procedural and substantive issues raised in the above letter by the Temporary Committee with regard to its request for information on the cooperation between the EU and US authorities on activities falling within the Temporary Committee’s remit. The document is classified as RESTREINT UE, indicating that its unauthorised disclosure could be disadvantageous to the interests of the European Union or one or more of its Member States. It is precisely for reason of the sensitive nature of the issues involved that transmission of information contained in the draft reply was made conditional upon a confidential treatment by the European Parliament. […]

 

 

March 30th, 2009 - Reply by the European Ombudsman

 

Dear Mr Ottmann,

 

On 28 February 2009 you made a complaint to the European Ombudsman against the Council of the European Union, concerning the Council’s refusal to grant access to document 14483106 (RESTREINT UE). This document is an ‘I’ item note from the Presidency to the Permanent representative Committee (Part 2), drawn up in response to a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged CIA use of European countries for the transportation and illegal detention of prisoners.

 

The allegations and claims that I have asked the Council to submit an opinion on are the following:

 

The Council failed to reason its refusal to grant partial access to the relevant parts of document 14483/06 (RESTREUINT UE) with regard to the CIA rendition program.

 

The complainant claims that the Council should give partial access to the relevant parts of document 14483/06 (RESTREUINT UE), which contain information on the CIA rendition program.

 

The examination of your complaint is under way and I shall let you know its preliminary outcome as soon as possible.

 

In accordance with Articles 2(2) and 3(1) of the Statute of the European Ombudsman, I have informed the Secretary-General of the Council of your complaint and asked him to submit an opinion on it by 30 June 2009. When the opinion is received, I will forward it to you with an invitation to submit observations, if you so wish, within one month. Please note that there may be a short delay in forwarding the opinion to you if translation is necessary.

 

I have also informed the Council that my services intend to carry out an inspection, at the Council's premises, of the document you requested. I have asked the Council not to submit its opinion before the inspection. […]

 

 

February 28th, 2009 - Complaint to the European Ombudsman

 

What is the decision or matter about which you complain? What is the decision or matter about which you complain? When did you become aware of it? Add annexes if necessary.

 

On January 19th, 2009, the Council of the European Union informed me by letter that my confirmatory application from December 4th, 2008 for public access to document 14483/06 was denied. […]

 

 […] What do you consider that the EU institution or body has done wrong?

 

The Council did not grant access to the relevant parts of the document (making it partially accessible to the public) with regards to the CIA rendition program, which was my initial request from July 15th, 2008, when I asked for a list of Council documents with regards to the CIA kidnappings. Instead the Council withheld document 14483/06 as a whole.

 

What, in your view, should the institution or body do to put things right?

 

The Council should grant me partial access to the relevant parts of document 14483/06, the parts that contain information on the CIA rendition program and any other related information with regards to that subject. […]

 

 

January 19th, 2009 - Reply Adopted by the Council

 

Dear Mr Ottmann, […]

 

 […] The Council has considered this confirmatory application under Regulation (EC) No 1049/2001 (OJ L 145 of 31.5.2001, p. 43) and Annex II to the Council’s Rules of Procedure (Council Decision 2006/683/EC, Euroatom - OJ L 285 of 16.10.2006, p. 47) and has come to the following conclusion:

 

1. You refer to document 14483/06 (RESTREINT UE), and ‘I’ Item note from the Presidency to the Permanent Representatives Committee (Part 2) concerning the approval of a reply to a letter of the European Parliaent on transmission of information to the Temprorary Committee on the alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners.

 

2. In its reply to you dated 19 November 2008, the General Secretariat refused to grant access to this document pursuant to Article 4(1)(a) of the Regulation (protection of the public interest with regard to international relations).

 

3. On 4 December 2008, you submitted your confirmatory application. Referring to recital (2) and Articles 2, 3 and 4 of Regulation 1049/2001, you request the Council to review its position and grant at least partial access to document 14483/06 with regard to ‘parts that cover information on the CIA rendition program and related activities’.

 

4. Having thoroughly examined the requested document and carried out internal consultations with the relevant department of its General Secretariat, the Council has come to the conclusion set below.

 

5. Document 14483/06 is an ‘I’ Item note from the Presidency to the Permanent Representatives Committee (Part 2). It was drawn up in response to a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners. The document is classified ‘RESTREINT UE’, which means that its unauthorised disclosure could be disadvantageous to the interests of the European Union or one or more of its Member States.

 

In view of the sensitive content of the document, its disclosure would be detrimental to the good functioning of the relations between the EU and the US. It would hinder the diplomatic efforts being made in order to find constructive solutions to issues in areas of the highest political importance, inclusing the areas of human rights law and international humanitarian law.

 

6. Against this background, the Council confirms the General Secretariat’s decision to refuse access to the requested document, pursuant to Article 4(1)(a), third intent, of the Regulation (protection of the public interest with regard to international relations).

 

The Council has also looked into the possibility of granting partial access to the above-mentioned document as foreseen in Article 4(6) of the Regulation, but concluded that this ia impossible since the content of the document forms an inseparable whole.

 

 

January 6th, 2009 - Reply to Confirmatory Application prolonging time limit

Letter from the Council of the European Union

 

Dear Mr Ottmann,

 

Thank you for your e-mail of 4 December 2008, by which you make a confirmatory application for access to document 14483/06, pursuant to Article 7(2) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (Official Journal L 145 of  31.05.2001, p. 43).

 

Considering the timetable for meetings of the various Council bodies involved in the examination of your application, a decision by the Council cannot be taken before 20 January 2009.

 

The time limit for the Council to reply to your application has therefore to be extended in accordance with Article 8(2) of the Regulation. […]

 

 

December 4th, 2008 - Confirmatory Application for Public Access

 

Dear Sirs,

 

on November 19th, you have provided me with a series of documents, following my requests from July 15th and 22nd. In total you have listed 24 individual documents as relevant to my original request.

 

With regards to document No. 24, 14483/06, you stated as follows:

 

 [...] 24) Document 14483/06 is an 'I' item note from the Presidency to the Permanent Representatives Committee (Part 2) concerning a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners = Approval of a reply (classified as RESTREINT UE)

 

Disclosure of the content of this document would prejudice relations between the European Union and the United States. Pursuant to Article 4 (1)(a), third indent, of the Regulation (protection of the public interest with regard to international relations) the General Secretariat is unable to grant you access to this document.

 

Under Article 7(2) of the Regulation, you have 15 working days to submit a confirmatory application for the Council to review its position. [...]"

 

With this letter I ask you to review your decision to completely withhold this document from public access. I hereby refer to my prior document requests, where I wrote:

 

Regulation (EC) No 1049/2001 of the European Parliament and of the Council states: '(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union. [...]'.

 

Article 2 ‘Beneficiaries and scope' of the regulation says: '1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation. [...]

 

‘3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.’ [...]

 

As I have raised this issue several times over the past months, I am aware of the existence of Article 4 (1) (a), third indent, of the Regulation 1049/2001 - as you have used it in the recent past as an argument for the non-disclosure of certain documents, such as COREU CFSP/SEC/1126/06.

 

I am still wondering of how international relations between the US and the EU could be damaged or be at risk by the disclosure of documents on human rights violations and crimes that the United States have committed on the territory of the EU or on bilateral discussions about this issue. The amount of information on the CIA activities in Europe, which has been made public within the past 3 years, showed not only the complete disregard from the US for existing European national and international laws, but also the implication of certain European government agencies in the United Kingdom, Germany, Italy, Poland, Romania and most recently, Spain in illegal acts. Are you referring to Article 4(1) because this and other documents would disclose even more embarrassing information on illegal actitivies, which have taken place?

 

In this regard I ask you to review you position and grant at least partial access to document 14483/06 with regards to parts that cover information on the "CIA rendition progam" and related activities.

 

Sincerely yours,

 

Martin Ottmann

 

 

November 19th, 2008 - Reply from Council following Document Request (First mentioning of 14483/06)

 

Dear Mr. Ottmann, […]

 

 ‘RESTREINT UE’: this classification shall be applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States. […]

 

Altogether 24 documents have been identified as being covered by your request. […]

 

24) Document 14483/06 is an ‘I’ item note from the Presidency to the Permanent Representatives Committee (Part 2) concerning a letter of the European Parliament on transmission of information to the Temporary Committee on the alleged use of European Countries by the CIA for the transportation and illegal detention of prisoners = Approval of a reply (classified as RESTREINT UE)

 

Disclosure of the content of this document would prejudice relations between the European Union and the United States. Pursuant to Article 4 (1)(a), third indent, of the Regulation (protection of the public interest with regard to international relations) the General Secretariat is unable to grant you access to this document.

 

Under Article 7(2) of the Regulation, you have 15 working days to submit a confirmatory application for the Council to review its position. […]

 

 

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