Report | Date: 2006-02-22 | Ministry of Foreign Affairs
Norges svar til Europarådet vedrørende ulovlig fangetransport
Norway is deeply concerned about reports concerning alleged transport of illegally detained persons through airports and other facilities in European countries and about alleged secret detention centres within European territory. The Norwegian Government appreciates the initiative taken by the Council of Europe to investigate these allegations.
We take this opportunity to reiterate the absolute nature of the obligation to ensure humane treatment and protection against torture or other cruel, inhumane or degrading treatment or punishment. The obligations deriving from these norms continue to apply in the case of the surrender or extradition of a person to a foreign State.
The Norwegian Government underlines that any perception that fundamental rights and freedoms may be set aside to fight terrorism will in the long term only undermine the fight against terrorism. A peaceful society must be based on the rule of law and the upholding of fundamental norms as laid down in international humanitarian law as well as in international human rights, of which the European Convention for the Protection of Human Rights and Fundamental Freedoms is a core instrument.
The status of the European Convention on Human Rights in Norwegian law
The European Convention on Human Rights (ECHR) has the force of Norwegian law. In the event of a conflict between a provision of the ECHR and a provision of national law, the former shall take precedence. When determining how a provision of the Convention is to be interpreted, Norwegian courts are to make an independent interpretation using the same method as that employed by the European Court of Human Rights.
Pursuant to the Norwegian Aviation Act, Norwegian and foreign aircraft may be examined with a view to ensuring air safety and preventing an attack on an aircraft (aviation security). In this respect Norway complies with international rules laid down by the ICAO 1International Civil Aviation Organization., the ECAC 2European Civil Aviation Conference. and the EU. However, the questions that arise in the current matter are not generally covered by the provisions of this Act.
Relevant rules of criminal procedure
Pursuant to the Criminal Procedure Act, the prosecuting authority may use coercive measures against a suspected person while investigating a criminal case. The primary forms of coercive measures are arrest, remand in custody, search and seizure. We understand the request as being confined to the measures that involve deprivation of liberty, i.e. arrest and remand in custody.
The conditions governing arrest and remand in custody are the same. The basic condition is that there is “just cause for suspicion” of one or more criminal acts punishable by imprisonment for a term exceeding six months. The concept of “just cause” entails that, on the basis of objective reasons, it is deemed more probable than not that the person charged has committed the offence in question. It is also required that there is reason to fear that the person concerned will evade prosecution or the execution of a sentence or other precautions, that he will interfere with any evidence in the case, that he will again commit a criminal act or that he has given his consent. The principle of proportionality also applies in the sense that arrest and remand in custody may not be used if they would be a disproportionate intervention in view of the nature of the case and other circumstances. Since the ECHR has the force of Norwegian law, any deprivation of liberty must fulfil the requirements set out in the convention in order to be lawful.
The prosecuting authority has the competence to make a decision to carry out an arrest. In some cases the decision may also be made by a police officer who is not attached to the prosecuting authority. A decision concerning arrest is executed by the police or by some person who has been so requested by the prosecuting authority. The Criminal Procedure Act does not allow public officials of other countries to decide that a person should be arrested. However, since Norway has an association agreement with the EU concerning the implementation, application and development of the Schengen acquis, a public official of a Contracting Party may pursue an individual apprehended in the act of committing a serious criminal offence specified in the Convention into Norwegian territory and arrest him. However, this is a very narrow exception clause, which is only applicable in particularly urgent situations, cf. the Schengen Convention, Article 41, para. 2 b.
If the prosecuting authority wishes to detain the person arrested, it must as soon as possible and as far as possible on the day following the arrest, bring him before the District Court. This time limit will be extended to three days by an amendment that is expected to enter into force in the course of 2006. The District Court decides whether the conditions for remand in custody are fulfilled. If the Court concludes that the conditions are not fulfilled, the person shall be released.
The unlawful deprivation of liberty is a criminal offence according to Norwegian law. In order for a foreign national to be convicted for unlawful deprivation of liberty, he must have acted with intent. Such deprivation of liberty is subject to criminal liability regardless of whether it was committed by a Norwegian national or a foreign national, and whether it was committed within Norwegian territory or within the territory of another country. When an unlawful deprivation of liberty is committed within Norwegian territory, the Norwegian police may, subject to specific conditions, intervene to prevent or put a stop to such deprivation of liberty, and use such coercive measures against the offender as are provided for in the Criminal Procedure Act. If the prosecuting authority discovers evidence of the offender’s guilt, it is as a general rule obliged to prosecute the case. This means that a foreign national who has committed a deprivation of liberty in Norway or another country that is in contravention of Norwegian law may be held criminally liable by a Norwegian court.
The main challenge, however, is to detect such situations should they arise. Civil operators/aircraft that are registered in States that are members of the UN aviation organisation ICAO may, according to the Chicago Convention on International Civil Aviation, make non-scheduled flights (i.e. charter flights, etc.), through each other’s airspace and make landings for non-traffic purposes without having to obtain prior permission. In Norway such flights are registered by Avinor 3Avinor is the Norwegian company that operates most of the airports in Norway and the Norwegian Air Traffic Control Service. and Eurocontrol 4European Organisation for the Safety of Air Navigation.. Information concerning such flights is sent in the form of a flight plan to the air traffic control service units concerned and, if required, to the airport administrations concerned. In such cases the chances of detecting whether the aircraft is carrying passengers who are being held on board against their will are small. In cases where civil aircraft must apply for permission (e.g. in cases where the aircraft takes on new passengers during an intermediate landing), the application procedures – which we presume are very similar to those of other ICAO Member States – are routine and not detailed enough to reveal cargo or passengers that are being carried in violation of Norwegian legislation in the area if they are not specified in the application for landing or overflight permission.
The rules on state immunity impose certain restrictions on the host State’s competence to apply its jurisdiction (court competence and enforcement action) over the property of a foreign State, including aircraft, vessels, etc. State immunity is primarily based on customary international law and the recently adopted UN Convention on Jurisdictional Immunities of States and Their Property . The convention has not entered into force.
There is no tradition or precedent in Norwegian law for the statutory regulation of immunity under international law. The provisions on immunity are incorporated through the general provisions of section 4 of the Criminal Procedure Act, section 36 a of the Civil Procedure Act and section 1-4 of the Enforcement Act, which provide that the provisions of the respective Acts shall apply subject to such limitations as are recognised in international law or which derive from any agreement made with a foreign State.
The question is what significance the rules on state immunity have for Norway’s obligation to prevent violations of human rights, e.g. if there is a suspicion that a person is being transported while deprived of his liberty.
It is presumed that the rules on state immunity will have no significance for civil commercial flights. As a general rule, Norway has full jurisdiction over such flights and is thus, under the circumstances, also obliged to prevent any acts that would constitute a violation of human rights.
However the question is more complex as regards flights made by state aircraft, which are “aircraft used in military, customs and police services”, cf. the Chicago Convention on International Civil Aviation from 1944. Civil aircraft flying in the service of a State or a government are also regarded as state aircraft.
As a general rule, a state aircraft must have permission to fly over or land on Norwegian territory. If Norway should, prior to such use of Norwegian territory, have reason to believe that the flight is involved in activities that constitute a violation of human rights, this must be taken into account when considering the application as a possible ground for rejecting it. This will have to be based on a careful assessment of the available information. Moreover, the permission may be made conditional on the transport not entailing any violation of human rights. The rules on state immunity apply once permission has been granted.
The rules on state immunity generally apply to state aircraft used for official purposes. This means that as a general rule, Norway has no jurisdiction through court competence or enforcement action over state aircraft that have been granted permission to use Norwegian territory. However, this immunity is not absolute. Certain serious violations of international law obligations may be exempted from immunity, such as gross human rights violations. In the House of Lords’ judgment of 24 March 1999 in the Pinochet case, it was submitted that a head of state is not entitled to immunity in respect of serious international crimes such as torture, murder and hostage-taking. If Norway were to receive clear indications that persons on board a state aircraft could be subject to certain kinds of gross human rights violations, the Norwegian authorities would have to contact the authorities responsible for the aircraft to obtain assurances that such actions will not take place. If such assurances should not be provided, this could have consequences for the immunity of the aircraft in question. There could also conceivably be cases where such assurances could not, for various reasons, be considered sufficient.
However, it should also be noted that once the aircraft is present in Norway, either in transit through Norwegian airspace or at a Norwegian airport for a brief landing, the opportunities to intervene would in practice be very limited.
Investigations of specific flights
On the basis of press reports of intermediate landings in Norway, the Norwegian authorities have requested information from the US authorities. At the request of the Ministry of Transport and Communications and the Ministry of Foreign Affairs, the Civil Aviation Authority requested information from the US aviation authorities about a specific intermediate landing in Norway. The US aviation authorities provided information on where the aircraft was registered, but were unable to answer the Civil Aviation Authority’s questions concerning the aircraft’s operator, its mission or who had commissioned it.
In a subsequent meeting on 22 June 2005, the US Embassy emphasised that Norwegian airports had not been used for the transit of unlawful enemy combatants or detainees. It added that the USA respects Norway’s territorial sovereignty and will not use Norwegian airports without prior consultations with the Norwegian authorities.
When the Ministry of Foreign Affairs received new press reports about another intermediate landing in Norway, it again contacted the Civil Aviation Authority and the US embassy. Landing permission had been applied for for this intermediate landing, and the information provided by the Authority confirmed that it was a civil aircraft. On 16 November, the Ministry of Foreign Affairs requested the US Embassy to provide information on the matter, including on whether Norwegian airspace had been used for transit of unlawful enemy combatants or detainees. At a meeting between the Ministry and the Embassy on 6 December, the Embassy referred to the statement made by Secretary of State Rice on 5 December. In the US view, the statement was a sufficient reply to the Norwegian request for more information about the alleged transport of detainees on or over Norwegian territory. The US Embassy reemphasised that the USA obeys Norwegian laws and regulations and respects Norway’s territorial sovereignty.