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The
War Profiteers - War Crimes, Kidnappings & Torture |
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CIA-Kidnappings: Document COREU CFSP/SEC/1126/06, Classified
Restreint UE |
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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’; […]” |
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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 |
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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] […]” |
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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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