CDL-AD(2006)009 -8- b. Irregular inter-State transfers of prisoners9 24. A transfer is unlawful or irregular when the government of State B transfers a person from State B to the custody of State A, against his or her consent, in a procedure not set out in law (i.e. not extradition, deportation, transit or transfer with a view to sentence-serving). 25. The kidnapping of a person by agents of State A on the territory of State B and his or her removal to State A or to a third State is a violation of State B’s territorial sovereignty and therefore an internationally wrongful act which engages the international responsibility of State A10. 26. Under general international law (see para. 37 below), in such a case State A has to make “full reparation for the injury caused by the internationally wrongful act” at the request of the injured State, which, in this case, would include the return of the person in question. The rights of the person in question vis-à-vis State A depend upon the latter’s law, on the applicable human rights obligations. 27. Irregular transfers may take place with the acquiescence of the territorial government. This type of situation raises a human rights issue. For a Rechtsstaat, it will also raise the issues of governmental responsibility for acts of its organs and services and of parliamentary control over government. 28. Another form of irregular transfer happens where some section of the public authorities in State B (police, security forces etc.) transfers a person from State B but not in accordance with a procedure set out in law, or even contrary to domestic law. This, in turn, may take the form of official participation in the transfer (arresting and handing over), or facilitating a kidnapping (actively, or passively – not preventing a kidnapping which it was known would occur). The security/police action may occur with or without government knowledge. 29. If there is no legal basis for an active measure (arrest, handing over etc) under national law, then there will be in such cases a breach of national law on arrest, and consequently also a breach of Article 5 of the European Convention on Human Rights. This situation also raises the issue of governmental control over the security/police services, and parliamentary control over the government (see below, §§ 38-43). 30. As regards the terminology used to refer to irregular transfer and detention of prisoners, the Venice Commission notes that the public debate frequently uses the term “rendition”. This is not a term used in international law. The term refers to one State obtaining custody over a person suspected of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of such a person to custody in the first State’s territory, or a place subject to its jurisdiction, or to a third State. “Rendition” is thus a general term referring more to the result – obtaining of custody over a suspected person – rather than the means. Whether a particular “rendition” is lawful will depend upon the laws of the States concerned and on the applicable 9 In the context of the present opinion, the term “prisoner” means “anyone deprived of their liberty by State authorities”. 10 European Court of Human Rights, Stocké v. Germany judgment of 12 October 1989, Series A no. 199, opinion of the Commission, p. 24, § 167.