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CIA-Kidnappings: Document COREU CFSP/SEC/1126/06, Classified Restreint UE

 

Introduction

 

This page lists the correspondence between representatives of the European Union and the site owner with regards to his application for public access to document COREU CFSP/SEC/1126/06 of the Council of the European Union. The Council classified the document and originally refused to grant public access to it.

 

The site owner became aware of the document through the final report on the CIA kidnappings aka “renditions” in Europe by the Temporary Committee of the EU, which was published on January 30th, 2007.

 

The following passages cite the document:

 

“[…] 25. Is outraged by the proposal which was to have been made by the then Council Presidency to set-up a joint ‘framework’ with the US on standards for the rendition of terrorism suspects, as confirmed by those who took part in the meeting of the Council’s Working Party on Public International Law (COJUR) and the Transatlantic Relations Working Party (COTRA) with senior representatives of the US Department of State held in Brussels on 3 May 2006;

 

“26. Calls for the disclosure of the results of the discussions conducted with the United States, according to Gijs de Vries, on the definitions of ‘rendition’ and ‘extraordinary rendition’; […]”

 

Events in Reversed Chronological Order

 

June 29th, 2010 - Letter & Decision by the Euorpean Ombudsman

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

October 22nd, 2009 - Reply Letter 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

March 10th, 2009 - Letter with Reference to the European Ombudsman

February 26th, 2009 - Letter by the European Ombudsman

October 31st, 2008 - Reply letter by Applicant

July 18th, 2008 - Draft Letter by the EU Council

June 2nd, 2008 - 2nd Reply Letter by European Ombudsman

May 22nd, 2008 - Reply Letter by the European Ombudsman

May 5th, 2008 - Applicant’s Follow-up Letter to European Ombudsman

April 7th, 2008 - Acknowledgement of Receipt by the Secretariat of the European Ombudsman

April 2nd, 2008 - Applicant’s Complaint to the European Ombudsman

March 3rd, 2008 - 3rd Denial of Access by the EU Council

February 12th, 2008 - 2nd (Confirmatory) Application for Access by Applicant

January 30th, 2008 - 2nd Denial of Access by the EU Council

January 28th, 2008 - Request for Clarification by Applicant

January 24th, 2008 - 1st Denial of Access by the EU Council

January 14th, 2008 - Original Application for Access to Document by Applicant

 

 

Related Document

 

May 11th, 2006 - Outcome of the EU-US Ministerial Troika on Justice and Home Affairs on 3 May 2006

Report by the Council of the European Union

 

“[…] Delegations in the meeting were led by: on EU side: Austria: Liese Prokop (Minister of Interior) and Karin Gastinger (Minister of Justice), Finland: Kari Rajamäki (Minister of Interior) and Leena Luhtanen (Minister of Justice), European Commission: Franco Frattini (Vice-President, Commissioner), Council Secretariat: Ivan Bizjak (General Director) - on US side: Alberto Gonzales (Attorney General) and Michael Jackson (Deputy Secretary of Homeland Security) […]”

 

“[…] Counter-terrorism and Human Rights - The EU side stated that our response to terrorism should always be based on and legitimated by our commitment to essential values like democracy and respect of fundamental rights. [The rest of the text has been redacted] […]”

 

 

Correspondence/History

 

June 29th, 2010 - Decision of the European Ombudsman Closing his Inquiry into Complaint

 

“[…] 28. The Ombudsman verified by inspecting the document whether the conditions had been satisfied for the exception based on the protection of the public interest as regards international relations to be applied to the document requested by the complainant. The inspection showed that the relevant document contains a detailed report of an EU Troika-US meeting which took place on 3 May 2006 concerning anti-terrorism activities and policy, in the framework of the transatlantic dialogue. The document deals with several highly sensitive issues concerning the fight against terrorism, and it sets out the positions of both parties to the discussions. It contains a detailed analysis of the various issues that were discussed. On the basis of his inspection, the Ombudsman considers that the Council was justified in taking the view that the exception based on the protection of the public interest as regards international relations applies, and that releasing the document in question would be detrimental to EU-US relations.

 

“29. In light of the case-law mentioned above, and the fact that the exception was found to be applicable, it is neither possible nor necessary to balance the interest protected by Article 4(l)(a), third indent, of the Regulation against other interests.

 

“30. The Ombudsman examined whether the Council should have granted partial access. In its decision of 3 March 2008, the General Secretariat of the Council stated that it had looked into the possibility of disclosing parts of the documentpursuant to Article 4(6) of the Regulation. It concluded, however, that partial access could not be granted since ‘the information contained in the document forms an inseparable whole’. This statement of reasons is extremely brief.

 

“However, the Ombudsman’s inspection showed that the comments in the document setting out the EU and US positions on the matters discussed were indeed intertwined, making it impossible to release parts of the document, for instance those setting out the EU’s position, without infringing the protection of the interest covered by Article 4(l)(a), third indent, of the Regulation.

 

“31. In light of the above, the Ombudsman concludes that the Council was entitled to apply the exception foreseen in Article 4(l)(a), third indent, of the Regulation in order to refuse access to the document. […]”

 

 

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 944/2008/0V.

 

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 944/2008/0V, the inspection concerned document “COREU CFSP/SEC/1126/06 (RESTREINT UE)”. […]

 

 

October 22nd, 2009 - Reply Letter by the European Ombudsman

 

Dear Mr Ottmann,

 

I am writing in reply to your e-mail of 28 September 2009, in which you inquire whether I have already had an opportunity to carry out the inspection in the above case, which I had announced in my letter of 26 February 2009.

 

You also make some inquiries concerning case 523/2009/TS, for which you will receive a separate reply.

 

The inspection in both cases 944/2008/OV and 523/2009/TS has not yet taken place, due to the fact that it has not yet been possible to agree with the Council on the way in which inspections concerning documents such as the one concerned by your complaint are to be carried out.

 

However, I wish to inform you that I personally raised the issue with the Council at a meeting which took place on 14 October 2009.

 

I will keep you informed of further developments.

 

Yours sincerely,

 

Nikiforos Diamandorous […]

 

 

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

 

 

March 10th, 2009 - Letter with Reference to the European Ombudsman

 

Dear Sirs,

 

thank you for your letter and your continued efforts to bring about a resolution to this issue.

 

In connection with my complaint for partial disclosure of document "COREU CFSP/SEC/1126/06", I would like to bring to your attention a report from February 4th, 2009 by the Special Rapporteur on the promotion and protection of Human Rights and fundamental freedoms to the United Nations, which was recently released. I have attached the said report to this e-mail.

 

In his report the Special Rapporteur has examined the state of human rights in the post 9/11 world, the infringement of basic civil rights by European and US intelligence agencies as well as the curtailment of the right for information on government activities by U.S. and European governments. More precisely, the Special Rapporteur noted:

 

"[...] 59. While the Special Rapporteur recognizes that States may limit the disclosure to the general public of specific information which is important for the protection of national security, for instance about the sources, identities and methods of intelligence agents, he is nevertheless worried by the increasing use of State secrecy provisions and public interest immunities for instance by Germany, Italy, Poland, Romania, the former Yugoslav Republic of Macedonia, the United Kingdom or the United States to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and - most importantly - liability.

 

"60. The human rights obligations of States, in particular the obligation to ensure an effective remedy, require that such legal provisions must not lead to a priori dismissal of investigations, or prevent disclosure of wrongdoing, in particular when there are reports of international crimes or gross human rights violations. The blanket invocation of State secrets privilege with reference to complete policies, such as the United States secret detention, interrogation and rendition programme or third-party intelligence (under the policy of 'originator control' prevents effective investigation and renders the right to a remedy illusory.

 

"This is incompatible with article 2 of the International Covenant on Civil and Political Rights. It could also amount to a violation of the obligation of States to provide judicial assistance to investigations that deal with gross human rights violations and serious violations of international humanitarian law. [...]"

 

In his recommendations, the Special Rapporteur writes:

 

" [...] 75. The Special Rapporteur urges Member States to reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security. Information and evidence concerning the civil, criminal or political liability of State representatives, including intelligence agents, for violations of human rights must not be considered worthy of protection as State secrets. If it is not possible to separate such cases from true, legitimate State secrets, appropriate procedures must be put into place ensuring that the culprits are held accountable for their actions while preserving State secrecy. [...]"

 

The above-cited paragraphs address the issues that have been discussed in my complaint for non-disclosure of Document "COREU CFSP/SEC/1126/06".

 

In refusing access to the document, the Council has invoked Article 4(1)(a) of the Regulation, including "the protection of public interest as regards international relations".

 

I continue not to believe that the protection of the *public interest* is actually at risk, when parts of the documents would be disclosed, which include information on the CIA rendition program. Rather, it would disclose more implication in illegal activities of EU Member states with regards to the CIA rendition program, which is soemthing that would indeed be of public interest - in the true meaning of the word.

 

And I also believe that here lies the actual reason, why the EU Council does not want to release this document to the public. The EU Council refrains from providing this document into the hands of the public, because it would be *another* proof of how basic human rights have been undermined by the illegal activities of EU and US intelligence and other government agencies at the behest of the Bush administration and how the EU Council did condone such illegalities on EU territory and in EU air space.

 

I sincerely hope that you will take the findings and the recommendations of the report by the Rapporteur to the UN in consideration when making your final determination about the disclosure or non-disclosure of document "COREU CFSP/SEC/1126/06".

 

Sincerely yours,

 

Martin Ottmann

 

 

February 26th, 2009 - Letter from the European Ombudsman

 

[…] Dear Mr Ottmann,

 

I write with regard to your complaint of 1 April 2008 concerning the refusal of the General Secretariat of the Council of the European Union to grant access to document COREU CF SPISECI 1 126106, classified RESTREINT UE, which contains a report on the EU-Troika meeting with the US authorities held on 3 May 2006.

 

After having examined the Council's opinion and your observations, I have come to the conclusion that further information is needed in order to allow me to deal with your complaint.

 

I have therefore written to the Secretary-General of the Council in order to ask him, in accordance with Article 3(2) of the Statute of the European Ombudsman, to allow my services to inspect the relevant document.

 

I wish to underline that, in accordance with Articles S(2) and 13(3) of the Implementing Provisions of the European Ombudsman, you will not have access to any confidential documents or confidential information obtained as a result of the inspection. However, a copy of the inspection report will be forwarded to you.

 

Yours sincerely,

 

Nikiforos Diamandorous […]

 

 

October 31st, 2008 - Reply Letter by Applicant

 

Subject: Request for public access to a document relating to a report of the EU-Troika meeting with the US authorities held on 3 May 2006

 

Observations

 

Having reviewed the Council’s position, I will take up the opportunity to respond as follows:

 

The Council has stated in its opinion that the requested document “falls within the sphere of international relations” and that a disclosure would impair a “public interest with regards to international relations” – once this interest has been established. The Council refers hereby to Article 4(1) of Regulation 1049/2001 of the European Parliament and of the Council.

 

Furthermore, the Council alleges that “the statements of reasons” had “fully enabled the applicant to understand the reasons for the refusal” and that any disclosure of the document, partial as well as full, would be “detrimental to the good functioning of the relations between the EU and the US.”

 

Besides the above,  the Council does not offer any explanation or information on how a partial or full disclosure of the document would detrimental to the public security with regards to international relations. The Council not even discusses the administrative process that led to the refusal for disclosure of the document.

 

As I have stated before, numerous crimes and violations of national laws of EU countries have been broken by the U.S. government and certain government agencies of EU countries, such as Poland, Italy or Romania. Other EU governments, such as Ireland, the United Kingdom of Germany have chosen to turn a blind eye towards the criminal acts, such as kidnapping and false imprisonment by the CIA and the U.S. military, while they have occurred.

 

There are several cases, where the citizens of EU countries have been lied to by their respective governments with regards to the involvement and knowledge of the criminal acts committed by the U.S. government.

 

Yet, despite all of this and despite a great public interest in that matter, which the Council has indirectly acknowledged in their latest opinion, it has made its decision in favor of a secret government, which shields the disclosure of activities contrary to the law of the land and towards human rights.

 

The decision of the Council not to disclose the document is certainly not based on a mandatory decision, which it was forced to by the law. The wording of the regulation 1049/2001 is vague and ambiguous and it leaves the Council the choice to invoke secrecy, as it deems appropriate, without having to bother with public scrutiny or an outside review of the administrative process. At least, such is the interpretation of the Council.

 

The decision of the Council not to disclose the document or at least part of it, is based on political considerations. The purpose for that decision was to serve the interests the U.S. administration and certain ERU government agencies that have either condoned or participated in illegal activities. In view of what has happened on the territory of the EU and the crimes that have been committed, the Council clearly fails to serve the interests and the public security of its citizens.

 

Sincerely yours,

 

Martin Ottmann

 

 

July 18th, 2008 - Draft Letter by the EU Council

 

[…] a) Applicability of the exception under the third indent of Article 4(1)(a) of the Regulation

 

11. The applicant claims that, given the grave illegalities surrounding the incidents invoked in the requested document and the EU Member States' involvement in these activities, the exception relating to the protection of international relations under Article 4(1)(a), third indent, is inapplicable to the present case. By this argument, the complainant essentially contends that, having regard to the specific facts of the case, the need for transparency is so pressing that it overrides the need to protect the document in question from disclosure.

 

12. First of all, the Council would recall that the exceptions provided for in Article 4(1)(a) of the Regulation, including the protection of public interest as regards international relations, are mandatory. 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. There is neither a need nor even a possibility to balance the protected interest against other interests.

 

13. In the light of the foregoing, after having determined that the conditions were met for the application of the international relations exception pursuant to Article 4(1)(a), third indent of the Regulation, the Council was bound to refuse access to the requested document, without the possibility of weighing the interest in the good functioning of the transatlantic relations against the public interest in the disclosure of the document, evoked by the applicant.

 

b) Applicability of the exception under Article 4(3) of the Regulation

 

14. The complainant contends that when evoking the exception under Article 4(3) of the Regulation (internal decision-making of the institution) for refusing public access, the Council did not take into account the existence of an immense public interest which, in the complainant's view, outweighed the possible damage resulting from disclosure.

 

15. In this regard, the Council would point out that, in its decision of 3 March 2008 on the applicant's confirmatory application - which is subject of the present complaint - it did not invoke Article 4(3) of the Regulation to refuse access to the document and therefore it cannot be accused of having failed to appreciate the pressing public interest, in accordance with Article 4(3) of the Regulation.

 

16. In this respect, your attention is drawn to the fact that the initial decision in the two-step administrative procedure is not, as such, open to review. As it has been consistently held by the Court of Justice, ‘in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is, in principle open to review only if it is a measure definitely laying down the position of the institution at the end of that procedure, and not a provisional measure intended to pave the way for the final decision’ (case T-70/04 Franchet and Byk v. Commission [2006] ECR II-2023 para. 46).

 

c) Reasons for refusing partial access

 

17. The Council would emphasise that it did consider the possibility of granting partial access under Article 4(6) of the Regulation. However, as it is clear from paragraph 7 of the decision on the confirmatory application, the Council found that partial access could not be granted, ‘as the information contained in the document forms an inseparable whole’.

 

18. The statement of reasons underlying the decision refusing public access fully enabled the applicant to understand the reasons for the refusal. In particular, it was possible to understand, firstly, that the entire document falls within the sphere of international relations and secondly, that, due to its sensitive content, disclosure in full or in part of the document would be detrimental to the good functioning of the relations between the EU and the US.

 

19. The Council would point out that it was not possible to provide all information as to why the document cannot be disclosed without revealing its contents and without thereby depriving the exception of its very purpose. In this respect, it would recall that the Court has consistently held the brevity of the institution's statement of reasons for the rejection of a request for public access when relying on one of the mandatory exceptions in Article 4(1)(a) does not constitute a failure to state reasons as long as it enables the applicant to understand or ascertain the reasoning followed, to enable him to challenge that refusal effectively before the Court and to enable that court to review the legality of the contested decision.

 

20. As to the possibility of releasing only those parts of the document which set out the position of the EU, the Council would reiterate that the information contained in the document forms an inseparable whole, in the sense that it would be impossible to disclose the comments by one of the parties without also uncovering the position of the other party to the discussions.

 

21. Finally, as regards the complainant's request to receive public access to those parts of the document setting out the legal position of the negotiating partners, the Council reiterates that the exception relating to the protection of international relations covers all information contained in the document.

 

22. For the reasons set out above, the Council believes the complaint to be unfounded.

 

Pierre de Boissieu […]

 

 

June 2nd, 2008 - 2nd Reply Letter by European Ombudsman

 

Dear Sir,

 

On 22 May 2008, I opened an inquiry into your complaint, which concerns the Council’s refusal to grant you access to document COREU CFSP/SEC/1126/06, classified Restreint UE, which contains a report of the EU-Troika meeting with the US authorities held on 3 May 2006.

 

Prior to that, and as you will recall, the legal officer in charge of the case called you on May 5 2008 in order to ascertain whether you were only interested in full access to the relevant document or whether, eventually, you would also be satisfied with partial access to the document concerned. Your reply was that you would indeed be happy if partial access were to be granted, i.e. access to those parts of the document that were of interest to you.

 

It was on this basis that I decided to open an inquiry into your complaint.

 

On 5 May, you sent me an additional e-mail in which, further to the above-mentioned telephone conversation of the same day, you confirmed that you would eventually be satisfied with partial access to the above document and specified those parts of the document that were of interest to you.

 

Unfortunately, and due to an oversight for which I apologise, this e-mail has not been enclosed in my letter of 22 May 2008 in which I asked the Council for an opinion on your complaint.

 

I have however now forwarded a copy of your e-mail to the Council, so that it can be taken into consideration by the Council when it prepares its opinion on your complaint.

 

Yours sincerely,

 

P. Nikiforos Diamandouros

The European Ombudsman

 

 

May 22nd, 2008 - Reply Letter by European Ombudsman

 

Dear Sir,

 

On 1 April 2008, you made a complaint to the European Ombudsman concerning the refusal of the General Secretariat of the Council of the European Union to grant access to document COREU CFSP/SEC/1126/06, classified Restreint UE, which contains a report of the EU-Troika meeting with the US authorities held on 3 May 2006.

 

The claim that I have asked the Council to submit an opinion on is the following: The complainant claims that the General Secretariat of the Council should grant access to the document.

 

The examination of your complaint is under way and I shall let you know its preliminary outcome as soon as possible. In my letter to the Council, I indicated that I would appreciate it if, in its opinion, the Council could also address the following two specific issues:

 

Firstly, in its decision of 3 March 2008 rejecting the confirmatory application the Council argued that Article 4(1)(a), third intent of Regulation 1049/2001 is applicable, since it would be difficult to address certain issues with the US if the latter had reason to believe that “the positions taken by it in meetings not open to the public may be made public unilaterally by the EU side”. However, it is not clear how this reasoning could entitle the Council to refuse to grant access to those parts of the document which do not set out the position of the US, but the position of the EU.

 

Secondly, I note that the reasoning used by the Council in order to refuse partial access is extremely brief and limited to stating that “the information contained in the document forms an inseparable whole”.

 

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 31 August 2008. When the opinion is received, I will forward it to you with an invitation to submit observations, if you so wish, within one month. […]

 

Yours sincerely,

 

P. Nikiforos Diamandouros

The European Ombudsman

 

 

May 5th, 2008 - Follow-up Letter to European Ombudsman

 

Dear Mr. Verheecke,

 

In response to our telephone conversation of today, May 5th, 2008, I hereby would like to confirm to you again in a written form to you that I agree of having only partial access to document COREU CFSP/SEC/1126/06.

 

As I have pointed to you, I am solely interested in information on legal aspects with regards to the “rendition” (aka kidnapping) program of the U.S. government that are covered by the above mentioned document.

 

Specifically I am interested in the following information:

 

- the legal position of the negotiating partners (U.S. & EU) with regards to the “rendition” program and the kidnapping activities of the U.S.,

 

- any mentioning of a discussion over legal issues with regards to the “rendition” program,

 

- any mentioning on the legality of past and possible future “rendition” activities by either the U.S. or the EU,

 

- any mentioning of past and future legal agreements between the U.S. and the EU with regards to the “rendition” program.

 

I am not interested in any other subjects that are mentioned in the document and I do not request access to such information.

 

I hope that I have sufficiently clarified my position.

 

Thank you for your assistance.

 

Sincerely yours,

 

Martin Ottmann

 

 

April 7th, 2008 - Acknowledgement of Receipt by the Secretariat of the European Ombudsman

 

Dear Sir/Dear Madam,

 

Your complaint dated 02/04/2008 was received by the Office of the European Ombudsman on 02/04/2008 and was assigned registration number 0944/2008/BU.

 

It will be dealt with by Mr. Olivier Verheecke […].

 

The Ombudsman can only make inquiries into complaints that meet the criteria of admissiblity set out in the Treaty establishing the European Community and the Statute of the European Ombudsman. Information concerning the admissibility of your complaint will be communicated to you as soon as possible. […]

 

Sincerely yours,

 

João Sant’Anna

Head of the legal department

 

 

April 2nd, 2008 - Applicant’s Complaint to the European Ombudsman

 

[…] Question 3: Denial by the Council of the European Union with regards to my request and my confirmatory application under Regulation (EC) No. 1049/2001 for access of document COREU CFSP/SEC/1126/06, classified RESTREINT UE, which contains a report of the EU-Troika meeting with the US authorities held on 3 May 2006. The Council has informed me by letter on March 3rd, 2008 that it would not grant me access to the above-mentioned document.

 

Question 4: The Council has wrongly refused to grant me access to document COREU CFSP/SEC/1126/06. Considering the various past violations of national law in EU member states, committed by the U.S. authorities and certain government agencies of EU member states in relation with incidents of kidnapping, illegal detention and illegal transportation of detainees by the C.I.A. and the U.S. Department of Defense within the past 7 years, the EU Council should be forced to disclose all its negotiations, consultations and discussions with the U.S.A. with regards to this subject. The general public has been repeatedly lied to by EU governments with regards to the extent of the illegal detentions and kidnappings committed by the U.S. authorities. Due to the involvement of EU governments in criminal activities in connection with the illegal kidnappings and detentions, Article 4(1)(a) becomes void. There is legitimate reason to believe that there exists criminal intent within EU governments intent to allow, condone and support the criminal activities of the current U.S. government. Therefore the general public should be fully informed of the intentions of the U.S. government and the EU Council, which exists to represent the interests of the EU citizens.

 

Question 5: The EU Council should grant me (and the general public) full access to document COREU CFSP/SEC/1126/06. […]

 

Question 7: I have used all the possibilites of redress with regards to the EU Council. In its letter from March 3rd, 2008 the General Secretariat of the EU Council informed me of the possibility to file a complaint against their decision with the EU Ombudsman, which I am doing hereby. […]

 

March 3rd, 2008 - Reply/Renewed Denial for Access by Council of the European Union

 

Dear Mr. Ottmann,

 

Please find enclosed the reply from the Council to your confirmatory application dated 12 February 2008. […]

 

Yours sincerely,

 

Marc Lepoivre

 

[…] The Council has carefully 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).

 

1. The applicant refers to document COREU CFSP/SEC/1126/06, classified RESTREINT UE, which contains a report of the EU-Troika meeting with the US authorities held on 3 May 2006.

 

2. By letter dated 30 January 2008, the General Secretariat refused to grant access to this document prusuant to Article 4(1)(a), third incident, and Article 4(3) of the Regulation (protection of the public interest with regard to international relations and protection of the Institution’s decision-making process).

 

3. Whilst referring in his confirmatory application to Articles 19 and 42 of the Charter of Fundamental Rights of the European Union, Article 6 of the Treaty of Lisbon and to Recital (2) and Article 2 of Regulation 1049/2001, the applicant essentially claims that there “exists an immense public interest which outweighs by far any possible negative effects resulting from the disclosure of these EU/US discussions”, and that the citizens have full right to be granted access to the requested document. Maintaining secrecy on this document would, in the applicant’s view, entail refusal to provide “complete transparency” and “covering up possible rights violations”.

 

4. The Council has thoroughly re-examined the document concerned and carried out consultations with the department of its General Secretariat in charge of this matter, and has came to the following conclusion.

 

5. Document COREU CFSP/SEC/1126/06 contains the report of the EU-US meeting held in the framework of the transatlantic dialogue, during which sensitive issues in the filed of the fight against terrorism were discussed. It reports in detail on the positions taken by both sides. It contains an analysis and comments on this area of co-operation and an assessment on how the issues have so far been addressed by the two parties.

 

6. Given the sensitive content of the document, the Council considers that 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 to find constructive solutions to the outstanding issues in sensitive political areas. If the United States had reason to believe that the positions taken by it in meetings not open to the public may be made public unilaterally by the EU side, it would be difficult, if not impossible, to address controversial issues between the two sides in this format. This would not only breach the mutual confidence in the future negotiations by also in turn, make it considerably more difficult to reach agreement between the two sides.

 

7. The Charter of Fundamental Rights of the European Union and the Treaty of Lisbon have not yet entered into force. The current framework is Article 255 of the EC Treaty, on which Regulation 1049/2001 - hence also Article 4(1)(a) thereof - are based.

 

8. The Council has also looked into the possibility of disclosing parts of the document pursuant to Article 4(6) of the Regulation. However, as the information contained in the document forms an inseparable whole, partial access cannot be granted.

 

9. In the light of the above, access to the document is denied in its entirety pursuant to Article 4(1)(a), third intent, of the Regulation (protection of the public interest as regards international relations).

 

 

February 12th, 2008 - Renewed Request for Access to Council of the European Union

 

Dear Sirs,

 

With regards to your letter from January 30th, 2008 I am applying hereby to reverse your decision with regards to document “COREU SEC/1126/06” and grant me access to it.

 

I strongly oppose the reasons for withholding the document, which you have laid out in your letter. My rights as a citizen of the European Union and the specific circumstances surrounding the various illegal kidnappings and detentions, which had been planned and conducted by the U.S. government on the territory and in the air space of the European Union, justify my right to access the above-mentioned document.

 

Article 42 - “Right of access to documents” - of the “Charter of Fundamental Rights of the European Union” (2000/C 36401) states: “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 European Parliament, Council and Commission documents.”

 

Article 6 of the “Treaty of Lisbon” (CIG 14/07) of the European Union states: “1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”

 

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.”

 

In your letter you are referring to Article 4(1)(a) and 4(3) of the above-mentioned EU regulation with regards to the reason for your refusal to grant me access to the document.

 

These articles state:

 

“1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

- public security,

- defence and military matters,

- international relations,

- the financial, monetary or economic policy of the Community or a Member State;

 

“3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

 

“Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. […]”

 

With regards to Article 4(3), it is clearly evident that an immense public interest exists, which outweighs by far any possible negative effects resulting from the disclosure of these EU/US discussions. Literally thousands of media reports have been written on the subject of illegal kidnappings and detentions, which have been conducted by the U.S. government in Europe.

 

Criminal proceedings have been started in Italy against members of the Italian intelligence services and against members of the C.I.A. after the kidnapping of Abu Omar/ Hassan Mustafa Osama Nasr. A criminal investigation and parliamentary hearings have been initiated in Germany, as a consequence to the kidnappings of Khalid Al-Masri and Murat Kurnaz. Both, the European Council and the European Union appointed committees to look into the illegal activities by the C.I.A and the U.S. Department of Defense and the involvement of agencies of various E.U. governments. Other public hearings have been held on the issue of the kidnappings and the CIA flights in other countries, such as Ireland or the United Kingdom.

 

To sum it up, a huge public interest exists in this matter, which is the subject of document “COREU SEC/1126/06”. This makes Article 4(3) of Regulation (EC) No 1049/2001 void.

 

With regards to Article 4(1)(a), I refer to Article 19 (2) of the “Charter of Fundamental Rights of the European Union” (2000/C 36401): “2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”

 

This fundamental right has been repeatedly violated through the actions of the U.S. government and certain agencies of E.U. governments, who condoned, supported and/or participated in the criminal activities of the C.I.A. and the U.S. Department of Defense. People have been kidnapped, imprisoned and transported to states, where they were likely to be tortured, such as Morocco, Algeria, Egypt, Syria or Afghanistan. Other individuals, such as the “Algerian Six”, have been imprisoned and transported to the U.S. concentration camp facility Guantánamo. Additionally, the reports of the EC and EU committees on the CIA kidnappings came to the conclusion that secret prisons most likely exist or existed in Poland and Romania.

 

In this context, and after the disregard and failure of the European Union and its members states to enforce above-mentioned Article 19 in order to prevent the C.I.A. kidnappings, but having instead cooperated in criminal activities themselves, it is absolutely mandatory that any EU documents on this subject are made available for public scrutiny, so as to make public further intent to commit or condone violations or the of the Article 19, by the U.S. and certain EU member states. Article (1)(a) becomes void, as by refusing to provide the public with complete transparency, you are actually not serving the public interest in public security, but instead you are condoning and supporting secrecy and covering up possible human rights violations. Thereby you are serving the interests of the current U.S. administration, instead of the interests of EU citizens. Likewise you are covering up possible criminal activities and the criminal intent of certain agencies within the governments of certain EU countries.

 

I therefore re-submit hereby my application for access to the document “COREU SEC/1126/06” and await your positive reply. I expressively permit the Council to make my confirmatory application fully public in the Council’s Register of documents.

 

Sincerely yours,

 

Martin Ottmann

 

 

January 30th, 2008 - Reply to 2nd Letter by Council of the European Union

 

Dear Sir,

 

Your inquiry of 14 January 2008 to the “Information to the Public” unit has been transmitted to the “Access to Documents” unit, as far as your wish to gain access to a report on the EU-US meeting of 3 May 2006 is concerned. Thank you for your interest.

 

The General Secretariat of the Council has examined your request on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, 31.5.2001, p. 43) and the specific provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure (Council Decision No 2006/683/EC, Euratom, Official Journal L 285, 16.10.2006, p. 47) and has come to the following conclusion:

 

A report of the meeting of 3 May 2006 exists.  It is contained in document COREU SEC/1126/06 which is classified as “RESTREINT UE”, meaning that it concerns information “the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of its Member States”.

 

The document contains positions of the United States of America and of EU Member States on very thorny issues.  Due to its specific content, releasing this information would on the one hand impair the EU’s international relations and on the other hand seriously undermine Member States’ ability to have a continued dialogue on these issues.

 

Accordingly, pursuant to Article 4(1)(a) of the Regulation (protection of the public interest with regard to international relations), and Article 4(3) of the Regulation (protection of the decision making process of the Council), the General Secretariat is unable to grant you access to this document.

 

As the exceptions to the principle of transparency apply to the content of the entire document, the General Secretariat is not in a position to grant you partial access as provided for in Article 4(6) of the Regulation, either.

 

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

 

Yours sincerely,

 

For the General Secretariat

Ramón Jiménez Fraile

 

 

January 28th, 2008 - Letter to Council of the European Union

 

Dear Sirs,

 

thank you for your answer dated January 24th, 2008.

 

Please advise me about the appropriate administrative and legal recourse/appeal procedures, which are at my disposition as EU citizen in order to overturn your decision of withholding from me the document titled “COREU SEC/1126/06”.

 

Sincerely yours,

 

Martin Ottmann

 

 

January 24th, 2008 - Reply to Original Request by Council of the European Union

 

Dear Mr Ottmann,

 

Thank you for your email of 14/01/08.

 

We have received the following reply from the unit responsible :

 

“1. There were no discussions between Gijs de Vries and the US on ‘renditions’. On May 3, 2006 a meeting of the EU-US dialogue on counter-terrorism and international law took place in troika format - there was no proposal to set up a ‘rendition framework’.

 

Legal Advisers from the Ministries of Foreign Affairs of the EU Member States,with the assistance of the EU Council Secretariat and the European Commission, and the Legal Adviser of the US State Department have been engaging in an in-depth dialogue on international law and various aspects of the counter-terrorism effort. The aim of the dialogue is to foster mutual understanding and to discuss improved ways of safeguarding human rights in the effort to counter terrorism.

 

The dialogue has highlighted the legal problems arising from the fight against terrorism. Although the dialogue has shown that there are differences of opinion between the US and the EU, it is allowing both parties to learn about the developments and the legal obligations within the EU and the US on these matters.

 

The dialogue is contributing to a better understanding of how the fight against terrorism should be carried out with respect for the rule of law and international law, including international human rights law.

 

The EP has been informed about the content of the May 3 talks in an appropriate way.

 

2. A classified report of the meeting exists (COREU SEC/1126/06). Release of this document is denied since this would make public positions of the United States as well as of the Member States. This would impair, on the one hand, the EU’s international relations and, on the other hand, the possibility for the Member States to have a continued dialogue on these issues. Public access is therefore denied pursuant to Articles 4(1)(a), third indent (protection of the public interest as regards international relations) and 4(3), second paragraph (protection of the decision-making process). These exceptions apply to the whole document.”

 

Sincerely,

 

DGF - Information to the public

Secretariat General of the Council of the European Union

 

 

January 14th, 2008 - Letter to European Union - Original Document Request

 

Dear Sirs,

 

I hereby request a document, which has been mentioned in the following report: ‘Final Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners’ by the Temporary Committee of the EU from January 30th, 2007.

 

On page 8 under the chapter ‘Cooperation with EU institutions and international organisations’ it is stated:

 

“25. Is outraged by the proposal which was to have been made by the then Council Presidency to set-up a joint ‘framework’ with the US on standards for the rendition of terrorism suspects, as confirmed by those who took part in the meeting of the Council’s Working Party on Public International Law (COJUR) and the Transatlantic Relations Working Party (COTRA) with senior representatives of the US Department of State held in Brussels on 3 May 2006;

 

“26. Calls for the disclosure of the results of the discussions conducted with the United States, according to Gijs de Vries, on the definitions of ‘rendition’ and ‘extraordinary rendition’; […]”

 

I hereby request the document(s) (memoranda, notes, minutes, etc.), which summarize the discussions and statements of the members of the Working Parties and the U.S. State Department during that meeting on May 3rd, 2006 in Brussels.

 

Sincerely yours,

 

Martin Ottmann

 

 

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