-3- CDL-AD(2006)009 INTRODUCTION 1. By a letter of 15 December 2005, Mr Dick Marty, chairperson of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, requested an opinion of the Commission in respect of the following inter-related matters: a) An assessment of the legality of secret detention centres in the light of the Council of Europe member States’ international law obligations, in particular the European Convention on Human Rights (ECHR) and the European Convention for the Prevention of Torture. In particular, to what extent is a State responsible if – actively or passively – it permits illegal detention or abduction by a third State or an agent thereof? b) What are the legal obligations of Council of Europe member States, under human rights and general international law, regarding the transport of detainees by other States through their territory, including the airspace ? What is the relationship between such obligations and possible countervailing obligations which derive from other treaties, including treaties concluded with non-member States ? 2. A working group was set up, which was composed of the following members: Mr Iain Cameron, Mr Pieter van Dijk, Mr Olivier Dutheillet de Lamothe, Mr Jan Helgesen, Mr Giorgio Malinverni and Mr Georg Nolte. It was assisted by Ms Simona Granata-Menghini, Head of the Constitutional Co-operation Division. 3. Two working meetings were held in Paris, on 13 January and on 27 and 28 February 2006. 4. The Working Group sought the assistance of the NATO Legal Services and requested clarifications in relation to certain matters of military law as well as certain documents. Regrettably, the Commission was not provided with either of them. 5. The Working Group availed itself of the valuable assistance of the International Civil Aviation Organisation (ICAO), whose Legal Bureau provided documentation about the interpretation of certain provisions of the Chicago Convention on International Civil Aviation. The Commission wishes to express its appreciation and gratitude for the co-operation of the ICAO. 6. The present study was discussed within the Sub-Commissions on International Law and on Democratic Institutions in the course of a joint meeting on 16 March 2006, and was subsequently adopted by the Commission at its 66thPlenary Session (Venice, 17-18 March 2006). 7. The present opinion does not aim, nor does it have the ambition to assess the facts in relation to the current allegations about the existence of secret detention facilities in Europe or about the transport of detainees by the CIA through the territory (including the airspace) of certain European States. This is not the task of the Venice Commission. It is instead the object of the report that is in the process of being prepared by the PACE Legal Affairs Committee. 8. This opinion does not aim at identifying the pertinent internal law and practice of the Council of Europe member-States either. On 21 November 2005, the Secretary General of the

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