The CIA Affair and EU: Who Has Responsiblity?

The latest clue of alleged secret CIA interrogation centers in Europe comes from Egyptian sources. And of course, EU Justice Minister Franco Frattini found out about it exactly the way the European public did: through the media.

And while there remains little concrete proof of the existence of these prisons, the problem is, is that the EU has little legal room to maneuver begin searching for such evidence -- to settle the issue once and for all.

"We have no clear provision in EU law to handle something like this," said Friso Abbing, Frattini's spokesman. "The compliance with human rights is left to the member states. And when they breach the human rights conventions, then it is the province of the Council of Europe to investigate."

The Strasbourg-based organization is not an organ of the EU but an independent body of states whose chief mission is to monitor compliance to the European conventions on human rights and prohibiting torture.

The organization has 46 members including Romania, Bulgaria, Macedonia, Ukraine, Poland and Serbia-Montenegro, the states in which the alleged prisons were being operated.

Report on prisons due in January

The Council of Europe has already appointed its own investigator, Dick Marty of Switzerland, who is to present his report at the end of January. Theoretically, all member states have a duty to cooperate with the investigation. Still, the General Secretary of the Council of Europe, Terry Davis, has already criticized, for example, Kosovo, for denying the council's committee against torture access to its detention centers. Davis has hinted that the peacekeepers in Kosovo may have to become involved.

And should the council find proof that Poland, Romania and Bulgaria cooperated with illegal CIA operations, then the EU would have to react with strong penalties, said Frattini already in November, after the allegations first surfaced.

"If there comes proof that a member of candidate state allows or allowed such detention centers on their territory, and by doing so did not meet the standards for the treatment of prisoners, then we will have the duty to decide on how to handle the serious breach in EU law," Frattini said.

Until now, the official stance of the EU was to believe the denials emanating from Poland, Bulgaria and Romania, said Abbing.

"But we have to find out the true facts," he said. "We are just not there yet."

Finding an explanation

Toward clearing up the issue, the European Parliament could play a role. EU legislators want in the coming weeks to create a special committee to deal with the issue of secret prisons, secret transfers and torture or suspected terrorists in the EU.

Still, an official committee with investigative powers cannot be established because there is no provision in the law providing the parliament such jurisdiction.

Independent from the efforts of the EU and the Council of Europe, prosecutors in Italy and in Germany are exploring what legal avenues they can take regarding the alleged secret CIA flights transporting suspected terrorists through European countries.

In Germany in particular, the question remains when and how the previous Red-Green coalition government had reacted upon being informed of the CIA abduction of German citizen, Khaled El-Masri. He was captured by the CIA in Macedonia and brought to Afghanistan. The former US Ambassador to Germany, Daniel Coats informed former Interior Minister Otto Schily over the matter.