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CDL-AD(2006)009
133. The case might arise that some section of the public authorities of the Council of Europe
member State (police, security forces etc.) is informed and tolerates, or fails to prevent or even
co-operates in the maintenance of secret detentions without government knowledge. While this
situation raises the already mentioned constitutional issue of control over security forces, the
State remains responsible under the European Convention on Human Rights.
134. States which have ratified the European Convention for the Prevention of Torture have the
obligation to co-operate with the Committee for the Prevention of Torture and to provide it with
a list of all the detention centres which are present on their territory. CPT must have access to all
and any of these detention centres. Failure by a State to inform CPT of any detention facility can
be seen as a lack of co-operation within the meaning of Article 3 ECPT84, which, if not clarified
appropriately, can result in procedures towards a public statement under Art 10(2)85.
135. As concerns international humanitarian law, the Geneva Conventions (Articles 126 of
GCIII and 143 GCIV) grant the International Committee of the Red Cross “permission to go to
all places where prisoners of war or protected persons may be, particularly to places of
internment, imprisonment and labour”, and “access to all premises occupied by” them, including
“the places of departure, passage and arrival of prisoners who are being transferred”.
Responsibility could arise in this respect too.
136. Insofar as detention can be “secret” vis-à-vis the national authorities, the Commission
considers that a State is exempted from responsibility only if and as long as it does not have any
knowledge of a detention carried out by foreign agents in breach of its territorial sovereignty.
However, if any branch of the State is involved in or informed about the detention, irrespective
of their acting ultra vires, the responsibility of the State as a subject of international law is
engaged (see paras. 38-43 above).
C.
Council of Europe member States’ obligations in respect of interstate transfers of prisoners
137. There are only four legal ways of transferring a prisoner to foreign authorities: deportation,
extradition, transit and transfers of sentenced persons for the purpose of their serving the
sentence in their country of origin.
138. Extradition and deportation proceedings must be specified by the applicable law, and the
prisoners must be given access to the competent authorities. In addition, extradition and
deportation proceedings cannot be carried out where substantial grounds have been shown for
believing that the person in question, if expelled, would face a real risk of being subjected to
treatment contrary to Article 3 of the ECHR and of the UN Convention against Torture in the
receiving country. In these circumstances, Article 3 implies the obligation not to expel the
person in question to such a country.
84
Article 3 ECPT provides: “In the application of this Convention, the Committee and the competent national
authorities of the Party concerned shall co operate with each other.” See also Article 8 § 2 (b) ECPT.
85
Article 10 § 2 ECPT provides: “If the Party fails to co-operate or refuses to improve the situation in the
light of the Committee's recommendations, the Committee may decide, after the Party has had an opportunity to
make known its views, by a majority of two thirds of its members to make a public Statement on the matter.”
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