2012年-CEPS欧洲政策研究中心_Fruit_of_the_Poisonous_Tree_27页_263kb

Summary of Fruit of the Poisonous Tree

Core Content

This paper examines the indirect use of extraordinary rendition and unlawful detention by EU member states, highlighting how these practices, although not involving direct complicity, still allow states to benefit from the information obtained through such means. It analyzes the legal and ethical implications of these practices on the EU's counter-terrorism strategy and proposes policy recommendations to address the issue.

Main Points

1. Definition of Key Terms

• Extraordinary Rendition: The transfer of a person suspected of a serious crime from one state to another for interrogation, often without legal compliance.
• Unlawful Detention: A deprivation of personal liberty that violates fundamental rights, such as access to judicial review and legal advice.
• Fruit of the Poisonous Tree: A legal principle stating that evidence obtained through illegal means (e.g., torture) is inadmissible in court, even if the evidence itself is not directly obtained through unlawful acts.

2. Member States' Indirect Use

Two main variations of how member states indirectly benefit from these practices are identified:

1.1 Variation No. 1 – Interrogations at Guantanamo Bay and Other Detention Centres

• Several EU member states, including the UK, Germany, and Turkey, sent officials to Guantanamo Bay and other detention sites for interrogation.
• These officials were not tasked with assisting detained citizens but rather with gathering intelligence.
• The German government admitted to sending officials for interrogation and claimed that such information was only for intelligence purposes, not for criminal proceedings.
• Despite this, the practice was criticized for violating legal and moral standards, and the government acknowledged past failures in distinguishing between intelligence and criminal investigations.

1.2 Variation No. 2 – Information Exchange with Foreign Services

• Information obtained from detainees in foreign detention centres is sometimes transferred to European databases and used for domestic legal purposes.
• The legality of this information is questionable, as it may have been obtained through torture or inhuman treatment.
• In the UK, courts initially considered foreign torture information admissible, but this was later rejected by the House of Lords, citing the Torture Convention and international law obligations.
• The burden of proof in such cases was shifted to the accused, which has been criticized as unfair and inconsistent with international norms.

1.3 Contradictory Combinations

• The two variations often overlap in practice, making it difficult for officials to avoid complicity.
• Even when officials refuse to participate in interrogation, the information obtained may still be used for domestic purposes, undermining their efforts to uphold legal and ethical standards.

Legal Assessment

2.1 Foundations of the Legal Prohibition

• Torture is universally prohibited and criminalized under international law, including the UN Convention Against Torture (CAT) and the European Convention on Human Rights (ECHR).
• The principle of universal jurisdiction requires all states to investigate and prosecute torture, regardless of where it occurred.
• The prohibition of torture is considered a peremptory norm (jus cogens), meaning no state can derogate from it through treaties or custom.

2.2 Legal Implications of Extraordinary Rendition

• Extraordinary renditions violate multiple international and national laws, including the Chicago Convention, principle of sovereignty, and human rights provisions such as the right to personal liberty, freedom of movement, and the right to a fair trial.
• Prolonged unlawful detention may itself constitute inhuman or degrading treatment, even without torture.
• The Venice Commission and the EU Network of Independent Experts have both concluded that member states must prohibit the removal of individuals to such facilities and investigate allegations of torture.

Implications for EU Counter-Terrorism Strategy

• The EU's counter-terrorism policies risk being tainted by the questionable behavior of member states.
• There is a need for clarity and transparency in the EU's approach to counter-terrorism, especially regarding the involvement of foreign intelligence agencies.
• The paper emphasizes the importance of distinguishing between intelligence and criminal activities, and ensuring that the EU does not become complicit in practices that violate human rights.

Policy Recommendations

• Prohibit the use of information obtained through torture or unlawful detention.
• Clarify legal boundaries for the involvement of member states in extraordinary renditions.
• Strengthen oversight mechanisms to ensure compliance with international human rights law.
• Promote transparency in the EU's counter-terrorism operations and relationships with foreign intelligence agencies.
• Ensure that national laws are aligned with international obligations, particularly the Torture Convention and ECHR.

Conclusion

The paper concludes that the indirect use of extraordinary renditions and unlawful detentions by EU member states is illegal and unjustifiable, and that the EU must take a firm stance to prevent such practices from undermining its human rights commitments and counter-terrorism strategies.