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To Council of Europe Bodies:

To the Committee of Ministers

Decline to adopt the new European Convention on the Prevention of Terrorism unless and until Article 21 (“Discrimination Clause") is revised in line with the wording contained in draft Article 18his, point 2 in Opinion No.255 of the Parliamentary Assembly of the Council of Europe (PACE) on the draft Convention ("Grounds for refusing extradition or mutual legal assistance"): “States Parties shall refuse to comply with requests for extradition made in relation to the offences set forth in Articles 4-7 where there are substantial grounds for believing that complying with the request would result in the person concerned facing a real risk of: (...)

c. being subjected to torture or to inhuman or degrading treatment or punishment."

To the Parliamentary Assembly of the Council of Europe (PACE)

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Deplore the failure of the CODEXTER experts group, in drafting the European Convention on Prevention of Terrorism, to follow the recommendation of the PACE in its opinion No.255 (2005) on the draft Convention, affirming the absolute nonrefoulement obligation in respect of extradition requests of persons facing a real risk of torture or inhuman or degrading treatment or punishment.

Task the Committee on Legal Affairs and I luman Rights to undertake a study into all cases to date where Council of Europe member states have sought or have been requested to provide diplomatic assurances against torture or cruel, inhuman, or degrading treatment or punishment in extradition, return, expulsion, or other transfer cases.

To the European Committee for the Prevention of Torture

• Reaffirm the absolute nature of the nonrefoulement obligation in the course of confidential discussions with governments. Emphasize that diplomatic assurances in relation to torture or cruel, inhuman, or degrading treatment are inherently unreliable and that their use by states undermines the nonrefoulement obligation enshrined in article 3 of the European Convention on Human Rights.

Collect information in the course of country visits on the situation of persons threatened with return based on diplomatic assurances against torture and illtreatment and on the situation of persons who have been returned to the country of

visitation based on such assurances and the respective governments' compliance with the assurances.

To the Council of Europe Commissioner for Human Rights

Continue to reaffirm that the state practice of seeking diplomatic assurances that a person will not be tortured or subjected to cruel, inhuman, or degrading treatment or punishment undermines the nonrefoulement obligation enshrined in article 3 of the European Convention on Human Rights.

To Bodies of the Organization for Security and Co-operation in Europe:
To the Chairman-in-Office

• Put forward for adoption at the 2005 Ministerial Conference a declaration
reaffirming the absolute nature of the obligation under international law not to
expel, return, extradite, or otherwise transfer any person to a country where there are
substantial grounds for believing that he or she would be in danger of being
subjected to torture or prohibited ill-treatment, consistent with the importance
attached in the OSCE Copenhagen commitments (Article 16) to accession to and
respect for the Convention against Torture.

Actively promote the recognition that diplomatic assurances against torture and illtreatment are unreliable and ineffective safeguards against torture and prohibited illtreatment, and press OSCE participating states to give up their use.

To the Secretary General and to the Director of the Office for Democratic Institutions and Human Rights (ODILIR)

Task the Action against Terrorism Unit of the OSCE Secretariat and the Antiterrorism Coordinator at the ODIHR to monitor adherence by OSCE participating states to their nonrefoulement obligations, including any instances of recourse to diplomatic assurances, which should be reported to the Chairman-in-Office.

· Ensure that technical assistance to OSCE participating states in support of drafting anti-terrorism legislation and strengthening existing legislation directs states away from the use of diplomatic assurances against torture and ill-treatment. Emphasize through assistance in support of implementation of relevant U.N. Security Council resolutions, U.N. conventions and protocols the absolute nature of the nonrefoulement obligation.

To European Union Bodies:

To the Counter-terrorism Coordinator

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Reaffirm in all the Coordinator's activities and related documents, including in communications to the European Council, that diplomatic assurances in relation to torture or cruel, inhuman, or degrading treatment are inherently unreliable and do not provide an effective safeguard against abusive treatment. Reaffirm that the use of diplomatic assurances against risk of torture and ill-treatment undermines the nonrefoulement obligation enshrined in international law.

To the European Parliament

• Ensure that any draft resolution coming before the Parliament which refers to actions to combat terrorism makes appropriate reference to member states' absolute obligation not to expel, return, extradite, or otherwise transfer any person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or cruel, inhuman, or degrading treatment or punishment (prohibited ill-treatment).

To the European Commission

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Include in the June 2005 progress report requested from the Commission and the Council's General Secretariat by the Brussels European Council of December 2004 the recommendation for a declaration that reliance upon diplomatic assurances against torture and ill-treatment is unacceptable in the circumstances described in the second recommendation of this report.

To the Inter-American Commission on Human Rights:

Affirm the inherently unreliable nature of diplomatic assurances against torture and ill treatment and recommend that all Organization of American States (OAS) member states desist from reliance upon such assurances.

Acknowledgements

This report was researched and written by Julia Hall, counsel and senior researcher in the Europe and Central Asia division of Human Rights Watch. The report was edited by Rachel Denber, acting executive director in the Europe and Central Asia division of Human Rights Watch, Ben Ward, special counsel in the Europe and Central Asia division of I luman Rights Watch, and Joseph Saunders, deputy program director for Human Rights Watch. Dinah PoKempner, general counsel for Human Rights Watch, provided legal review. Wendy Patten, advocacy director in the U.S. program of Human Rights Watch, reviewed and provided valuable comments on the section on the United States. Ian Gorvin, advocacy consultant to the Europe and Central Asia division of Human Rights Watch, contributed to and reviewed the recommendations. Joanna Weschler, United Nations advocacy director of Human Rights Watch, reviewed the United Nations recommendations. The manuscript was also reviewed by Joe Stork, Washington director of the Middle East and North Africa division of Iluman Rights Watch, and Ophelia Field, consultant in the Refugee Policy program of Human Rights Watch. In addition to the above-named staff members, others at Iluman Rights have directly contributed to our work on diplomatic assurances against torture, including Veronika Leila Szente Goldston, advocacy director in the Europe and Central Asia division of Human Rights Watch, and Diederik Lohman and Acacia Shields, senior researchers in the Europe and Central Asia division of Human Rights Watch. Victoria Elman, associate in the Europe and Central Asia division of Human Rights Watch, provided invaluable production support for this report.

Human Rights Watch gratefully acknowledges the contributions made to this report by a number of valued colleagues, including Andrea I luber, Amnesty International (Austria); Yuval Ginbar, Amnesty International Secretariat (London); Anna Wigenmark, Swedish Helsinki Committee; and Maitre Johanne Doyon (Montreal).

REPORT, HUMAN RIGHTS WATCH, “GETTING AWAY WITH TORTURE?," APRIL 2005

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