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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.

 

Here are the passages, which cited 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

 

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

 

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.”