Doc. 11302 Report Mr Gnjidic, that Mr El-Masri is in desperate need of immediate professional psycho-social post-traumatic care. 248According to his current therapist,249the conflict between his post-traumatic care and the pressure arising from the various ongoing procedures to establish the truth simply adds to Mr El-Masri’s problems. 297. It is therefore all the more regrettable that Mr El-Masri has not yet been given an official apology for the abuses he has suffered, despite the fact that Mr Schily has stated before the Untersuchungsausschuss that Mr El-Masri is innocent and that the Americans have long since offered their own apology to the German Government. 298. I have the following comments regarding these developments in the El-Masri case. 7.1.2. The “legal vacuum”: denial of accountability to El-Masri in Germany and in the United States 299. In the present state of affairs, Mr El-Masri is unable to hold accountable those responsible for his ordeal both in Germany and in the United States. The core of the problem is the doctrine of state secrecy, which at present constitutes an absolute obstacle to the effective prosecution of Mr El-Masri’s kidnappers in Germany, the full clarification of responsibilities in the Untersuchungsausschuss and Mr El-Masri’s civil lawsuit against the CIA in the United States. 300. As Mr Gnjidic has said so aptly in his complaint against the wire-tap of his law office: whilst the domain of professional secrecy – the traditionally protected relationship between lawyers and doctors and their clients, journalists and their sources – is gradually shrinking, the realm of state secrecy is increasingly expanding. “Equality of arms” – part of the “fair trial” requirements under Article 6 ECHR – becomes a hollow phrase under these conditions.250 301. The United States Supreme Court, if it chooses to hear Mr El-Masri’s case, and the German Federal Constitutional Court, following the appeal lodged by the minority representatives of the Bundestag’s Committee of Inquiry, will have to take a position on the extent to which the executive is allowed to act in complete secrecy, without the possibility for either judicial or parliamentary scrutiny of its actions. Here, we have on the one hand, lawyers and judges – in favour of judicial and/or parliamentary control, and on the other, the executive, and in particular the intelligence agencies and other special services, claiming the freedom to act in secrecy on the pretext of the supposed higher interests of the state. Mr Gnjidic’s constitutional complaint, in contrast, has led to a clearer definition of the realm of professional secrecy. 302. These are undeniably key issues for the defence of human rights and for the fight against terrorism. Short-circuiting the different mechanisms of judicial and parliamentary control does not make the fight against terrorism more effective. Rather, this vacuum can lead to arbitrary action and all sorts of dysfunction. While certain operational means must of course remain confidential, there is nothing to prevent making provision for transparent procedures for subsequent review. Continuing to invoke state secrecy years after the events is unacceptable in a democratic society. 303. Moreover, state secrecy cannot in any circumstances justify or conceal criminal acts and serious human rights violations. From the point of view of the rule of law, the ruling of the United States Court of Appeal (4th circuit) in Mr El-Masri’s case251is disappointing and regrettable: whilst the Court of Appeal acknowledges that it is for the courts to decide on the extent of state secrecy,252it takes a very restrictive stance as to the scope of judicial review, insisting on the court being obliged to accord the “utmost deference” to the responsibilities of the executive branch.253This “deference” goes so far that “in certain circumstances a court may conclude that an explanation by the Executive of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure. […] In such a situation, a court is obliged to accept the executive branch’s claim of privilege without further demand”.254 248. Letter from Mr Gnjidic to Chancellor Merkel of 26 April 2007, passed on to the Bavarian Prime Minister’s Office by letter from the Chancellor’s office of 11 May 2007 with a request to take this issue up as a matter of urgency (copy of both letters on file); since February 2006, Mr El-Masri has received limited therapy (seventy hours) from the treatment centre for torture victims in Neu-Ulm, but this therapy was considered as insufficient both by Mr Gnjidic and by the therapist herself (see Spiegel online, 18 May 2007). Although Mr El-Masri had asked for treatment at the centre shortly after his return to Germany in 2004, it took until 2006 for Mr Gnjidic to obtain the required health insurance funding agreement to start this limited treatment. 249. See Spiegel online, 18 May 2007 (interview with Ms Gerlinde Dötsch). 250. Mr Gnjidic’s graphic comparison: the lawyer gets to fight with a pocket knife, the executive with a sword. 251. No. 06-1667 of 2 March 2007. 252. Quoting the United States Supreme Court in Reynolds (345 United States at 9-10) “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”. 253. Again quoting the United States Supreme Court (Nixon, 418 United States at 710). 58