3. In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation. The United States also refused to co-operate, in particular, with the judicial authorities of Germany, Lithuania and Poland in the criminal investigations launched in those countries in view of numerous elements of proof of abductions, secret detentions and illegal transfers of detainees (see Resolution 1507 and Recommendation 1754 (2006) and Resolution 1562 and Recommendation 1801 (2007) of the Assembly).
8. The media play a vital role in the functioning of democratic institutions, in particular by investigating and publicly denouncing unlawful acts committed by state agents, including members of the secret services. They rely heavily on the co-operation of “whistleblowers” within the services of the State. The Assembly reiterates its calls for adequate protection for journalists and their sources (Recommendation 1950 (2011) and for “whistleblowers” (Resolution 1729 and Recommendation 1916 (2010)).
9. The Assembly can only welcome the publication, in particular via the “Wikileaks” site, of numerous diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees published by the Assembly in 2006 and 2007. It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel. The appearances of such websites is also the consequence of insufficient information made available and a worrying lack of transparence of Governments.
B. Draft recommendation
1. The Assembly refers to its Resolution (2011) and recalls its Recommendations 1916 (2010) on protection of “whistleblowers”, 1876 (2009) on the need to eradicate impunity, and 1950 (2011) on protection of journalists’ sources.
C. Explanatory report by Mr Marty, Rapporteur
“Real power begins where secrecy begins.”
Hannah Arendt
(The Origin of Totalitarianism, 1951)
3. It should be emphasised, however, that, for the most part, these additional revelations were the outcome, not of parliamentary and judicial inquiries launched in the wake of the two Parliamentary Assembly reports and that of the European Parliament, but of relentless efforts by investigative journalists and nongovernmental organisations. The fact is that the “official” investigations are stalled or have even already been abandoned or dismissed without addressing the merits of the cases, as in the case of the compensation claims brought before the American courts by victims of the “renditions”. Official procedures have in every case come up against the argument of “state secrecy”, used by the governments concerned to impede the course of justice and the requests of the parliamentary commissions of inquiry set up in several countries. We consider that this is simply unacceptable: a democratic state based on the rule of law is duty-bound to have judicial and parliamentary mechanisms to get to the bottom of serious human rights violations committed by agents of the executive, however “special” they may be. A “licence to kill” (or to abduct and torture) only exists in certain films, and in dictatorial regimes. In democratic systems, parliaments, as representatives of the people, have a right and duty to know what the government is doing in the name of the people, and the justice system has a duty to prosecute and punish the perpetrators of criminal acts, including, where appropriate, agents of the executive. The principles of separation of power and “checks and balances” must not only be quoted in nice speeches; they must above all be implemented.
