FIRST SECTION
CASE OF ABU ZUBAYDAH v. LITHUANIA
pplication no. 46454/11)
JUDGMENT
STRASBOURG
31 May 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT i
PROCEDURE.......................................................................................................... 1
THE FACTS.............................................................................................................4
I. PRELIMINARY CONSIDERATIONS REGARDING THE
ESTABLISHMENT OF THE FACTS ............................................................4
II. EVIDENCE BEFORE THE COURT...........................................................4
III. BACKGROUND TO THE CASE .............................................................. .5
A. The so-called “High-Value Detainee Programme” ...................................5
1. The establishment of the HVD Programme............................................... 7
(a) The US President’s memoranda .......................................................... 7
(i) Memorandum of 17 September 2001................................................. 7
(ii) Memorandum of 7 February 2002...................................................... 8
(b) Abu Zubaydah’s capture and transfer to a CIA covert detention
facility in March 2002.................................................................................. 9
(c) Setting up the CIA programme “to detain and interrogate terrorists
at sites abroad” .......................................................................................... 9
2. Enhanced Interrogation Techniques ............................................................. 10
(a) Description of legally sanctioned standard and enhanced
interrogation techniques ........................................................................... 10
(b) Expanding the use of the EITs beyond Abu Zubaydah’s
interrogations.................................................................................................. 12
3. Standard procedures and treatment of “high value detainees” in CIA
custody (combined use of interrogation techniques) ................................. 13
4. Conditions of detention at CIA “Black Sites” ................................................ 18
5. The scale of the HVD Programme...................................................................19
6. Closure of the HVD Programme .....................................................................19
B. The United States Supreme Court’s judgment in Rasul v. Bush.................20
C. Role of Jeppesen Dataplan, Richmor Aviation and other air
companies in the CIA rendition operations.....................................................20
1. Jeppesen Dataplan Inc. ...................................................................................... 20
2. Richmor Aviation .............................................................................................. 21
3. Other companies ................................................................................................ 21
D. Review of the CIA’s activities involved in the HVD Programme in
2001-2009 by the US Senate....................................................................... 23
1. Course of the review.......................................................................................... 23
2. Findings and conclusions................................................................................... 24
IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE......................28
A. Restrictions on information about the applicant’s secret detention and
his communication with the outside world .................................................28
B. The applicant’s capture, transfer to CIA custody, secret detention and
transfers from 27 March 2002 to 22 September 2003, as established
ii
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented
by the 2014 US Senate Committee Report .................................................29
C. The applicant’s transfers and detention between his rendition from
Poland on 22 September 2003 and his alleged rendition to Lithuania
on 17 February or 18 February 2005 as established by the Court in
Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the
2014 US Senate Committee Report and other documents and as
corroborated by experts heard by the Court................................................33
D. The applicant’s alleged secret detention at a CIA “Black Site” in
Lithuania from 17 February or 18 February 2005 to 25 March 2006
as described by the applicant, reconstructed on the basis of the 2014
US Senate Committee Report and other documents and as
corroborated by experts heard by the Court................................................37
1. The applicant’s alleged rendition to Lithuania on 17 February or
18 February 2005 and his rendition from Lithuania on the plane
N733MA on 25 March 2006............................................................................ 37
(a) The applicant’s submissions...................................................................... 37
(i) Rendition to Lithuania (17 or 18 February 2005) ............................... 37
(ii) Rendition from Lithuania (25 March 2006)....................................... 38
(b) Evidence before the Court......................................................................... 39
(i) The 2015 Reprieve Briefing................................................................ 39
(α) As regards the colour-coded names of the CIA detention
facilities and periods of their operation ....................................... 40
(β) As regards the CIA prisoners’ transfers into Lithuania............... 42
– February 2005 transfers........................................................... 42
– October 2005 transfer .............................................................. 43
– March 2006 transfer................................................................. 43
(ii) Expert evidence.................................................................................. 44
(iii) “Detention Site Violet” in the 2014 US Senate Committee
Report ................................................................................................. 59
2. Detention and treatment to which the applicant was subjected......................... 61
E. The applicant’s further transfers during CIA custody (until
5 September 2006) as reconstructed on the basis of the 2014 US
Senate Committee Report and other documents and as corroborated
by experts heard by the Court .....................................................................65
F. The applicant’s detention at the US Guantánamo Bay facility since 5
September 2006 to present..........................................................................66
G. Psychological and physical effects of the HVD Programme on the
applicant ......................................................................................................67
H. Identification of locations of the colour code-named CIA detention
sites in the 2014 US Senate Committee Report by experts......................... 67
I. Parliamentary inquiry in Lithuania ...............................................................68
1. The Seimas investigation and findings .............................................................. 68
2. Extracts from transcripts of the Seimas’ debates on the CNSD Findings ......... 75
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
iii
J. Criminal investigation in Lithuania ..............................................................77
1. Investigation conducted in 2010-2011............................................................... 77
2. Reopening of the investigation on 22 January 2015 and further
proceedings ...................................................................................................... 88
V. RELEVANT DOMESTIC LAW AND PRACTICE ....................................89
A. Constitution of the Republic of Lithuania...................................................89
B. Criminal Code..............................................................................................90
C. Code of Criminal Procedure ........................................................................92
D. Civil Code....................................................................................................97
E. The Law on Intelligence ..............................................................................98
F. The Statute of the Seimas.............................................................................99
G. The Law on the Seimas Ad Hoc Investigation Commissions....................100
H. The Constitutional Court’s case-law .........................................................101
VI. RELEVANT INTERNATIONAL LAW.................................................... 102
A. Vienna Convention on the Law of Treaties...............................................102
B. International Covenant on Civil and Political Rights................................102
C. The United Nations Torture Convention ...................................................102
D. UN Geneva Conventions...........................................................................103
1. Geneva (III) Convention.................................................................................. 103
2. Geneva (IV) Convention.................................................................................. 104
E. International Law Commission, 2001 Articles on Responsibility of
States for Internationally Wrongful Acts ..................................................105
F. UN General Assembly Resolution 60/147.................................................106
VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE HIGHLIGHTING
VIOLATIONS OF CONCERNS ALLEGEDLY THE HVD AS PROGRAMME AND RIGHTS
US-RUN TO HUMAN OCCURRING IN IN DETENTION FACILITIES THE AFTERMATH OF
11 SEPTEMBER 2001 ..................................................................................107
A. United Nations Organisation .....................................................................107
1. Statement of the UN High Commissioner for Human Rights on detention
of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay,
Cuba, 16 January 2002................................................................................... 107
2. Statement of the International Rehabilitation Council for Torture.................. 107
3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006,
Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of
America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) .................................. 108
B. Parliamentary Assembly of the Council of Europe Resolution
no. 1340 (2003) on rights of persons held in the custody of the
United States in Afghanistan or Guantánamo Bay, 26 June 2003 ............108
C. International non-governmental organisations ..........................................109
1. Amnesty International, Memorandum to the US Government on the
rights of people in US custody in Afghanistan and Guantánamo Bay,
April 2002 ...................................................................................................... 109
ivABU ZUBAYDAH v. LITHUANIA JUDGMENT
2. Human Rights Watch, “United States, Presumption of Guilt: Human
Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G),
August 2002 ................................................................................................... 110
3. Human Rights Watch, “United States: Reports of Torture of Al-Qaeda
Suspects”, 26 December 2002 ....................................................................... 110
4. International Helsinki Federation for Human Rights, “Anti-terrorism
Measures, Security and Human Rights: Developments in Europe,
Central Asia and North America in the Aftermath of September 11”,
Report, April 2003 ......................................................................................... 110
5. Amnesty International Report 2003 – United States of America, 28 May
2003................................................................................................................ 110
6. Amnesty International, “Unlawful detention of six men from Bosnia-
Herzegovina in Guantánamo Bay”, 29 May 2003 ......................................... 111
7. Amnesty International, “United States of America, The threat of a bad
example: Undermining international standards as ‘war on terror’
detentions continue”, 18 August 2003........................................................... 111
8. Amnesty International, “Incommunicad odetention/Fear of
ill-treatment”, 20 August 2003....................................................................... 111
9. International Committee of the Red Cross, United States: ICRC
President urges progress on detention-related issues, news release
04/03, 16 January 2004 .................................................................................. 111
10. Human Rights Watch - Statement on US Secret Detention Facilities of
6 November 2005........................................................................................... 112
11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA
Custody of 30 November 2005...................................................................... 113
VIII. SELECTED MEDIA REPORTS AND ARTICLES..............................114
A. International media....................................................................................114
1. Reports published in 2002 ............................................................................... 114
2. Reports published in 2005 ............................................................................... 116
3. ABC News reports of 2009.............................................................................. 120
4. Other Reports (2009- 2011)............................................................................. 124
B. Lithuanian media .......................................................................................128
IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA
SECRET DETENTION AND RENDITION OF SUSPECTED
TERRORISTS IN EUROPE, INCLUDING LITHUANIA.......................129
A. Council of Europe......................................................................................129
1. Procedure under Article 52 of the Convention ................................................ 129
2. Parliamentary Assembly’s inquiry - the Marty Inquiry................................... 131
(a) The 2006 Marty Report ........................................................................... 131
(b) The 2007 Marty Report ........................................................................... 133
(c) The 2011 Marty Report ........................................................................... 136
vABU ZUBAYDAH v. LITHUANIA JUDGMENT
B. European Parliament.................................................................................138
1. The Fava Inquiry.............................................................................................. 138
2. The 2007 European Parliament Resolution ..................................................... 140
3. The Flautre Report and the 2012 European Parliament Resolution ................ 141
4. The 2013 European Parliament Resolution ..................................................... 143
5. The 2015 European Parliament Resolution ..................................................... 144
6. The October 2015 hearing before the LIBE ..................................................... 144
7. The 2016 European Parliament Resolution ..................................................... 145
C. The 2007 ICRC Report..............................................................................145
D. The 2010 UN Joint Study..........................................................................148
X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE
GOVERNMENT ...........................................................................................150
Witness A ........................................................................................................151
Witness A1 ......................................................................................................152
Witness A2 ......................................................................................................152
Witness A3 ......................................................................................................152
Witness A4 ......................................................................................................153
Witness B ........................................................................................................153
Witness B1 ......................................................................................................154
Witness B2 ......................................................................................................154
Witness B3 ......................................................................................................154
Witness B4 (also referred to as “person B” by the Government) ...................155
Witness C ........................................................................................................155
Witness C1 ......................................................................................................156
Witness C2 (also referred to as “person C” by the Government) ...................156
Witness D ........................................................................................................156
Witness D1 ......................................................................................................156
Witness E.........................................................................................................156
Witness E1.......................................................................................................157
Witness F......................................................................................................... 157
Witness F1.......................................................................................................157
Witness G ........................................................................................................158
Witness G1 ......................................................................................................158
Witness G2 ......................................................................................................158
Witness H ........................................................................................................158
Witness H1 ......................................................................................................159
Witness K ........................................................................................................160
Witness L.........................................................................................................160
Witness M........................................................................................................160
Witness N ........................................................................................................161
1. Questioning on 9 March 2010 ......................................................................... 161
2. Questioning on 16 March 2010 ....................................................................... 162
viABU ZUBAYDAH v. LITHUANIA JUDGMENT
Witness O ........................................................................................................162
1. Questioning on 9 March 2010 ......................................................................... 162
2. Questioning on 10 March 2010 ....................................................................... 162
Witness P.........................................................................................................163
Witness Q ........................................................................................................164
Witness R ........................................................................................................164
Witness S.........................................................................................................164
Witness T.........................................................................................................165
1. Questioning on 2 March 2010 ......................................................................... 165
2. Questioning on 16 March 2010 ....................................................................... 165
Witness U ........................................................................................................166
Witness U1 ......................................................................................................166
Witness V ........................................................................................................166
Witness X ........................................................................................................166
Witness Y ........................................................................................................167
Witness Z.........................................................................................................167
XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT ....167
A. The 2011 CPT Report................................................................................167
B. The Lithuanian Government’s Response to the 2011 CPT Report ...........171
C. Mr Fava’s testimony regarding the “informal transatlantic meeting”
given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ....175
D. Documents concerning the on-site inspection of Project No. 1 and
Project No. 2 carried out by the investigating prosecutor.........................176
1. Record of on-site inspection of Project No. 1 of 17 March 2010.................... 177
2. Record of the on-site inspection of Project No. 2 of 4 June 2010 ................... 179
E. Resolution and Operational Action Plan of 25 July 2002..........................179
F. Report on the incident of 6 October 2005 in Vilnius airport .....................180
G. Letter from former President of Lithuania Mr Adamkus to the CNSD
of 26 November 2009................................................................................181
H. Letter from the Ministry of the Interior of 9 December 2009 ...................182
I. Letter from Palanga airport of 15 March 2010 ...........................................182
J. The Customs Department letter of 12 April 2010 ......................................183
K. The SBGS letter of 27 April 2010.............................................................183
XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY
THE COURT.................................................................................................184
A. Presentation by Senator Marty and Mr J.G.S. “Distillation of
available evidence, including flight data, in respect of Lithuania and
the case of Abu Zubaydah” .......................................................................184
B. Senator Marty ............................................................................................187
C. Mr J.G.S..................................................................................................... 189
D. Mr Black....................................................................................................190
viiABU ZUBAYDAH v. LITHUANIA JUDGMENT
THE LAW ............................................................................................................193
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE
ADMISSIBILITY OF THE APPLICATION.............................................193
A.Lithuania’s lack of jurisdiction and responsibility under the
Convention in respect of the applicant’s alleged rendition to
Lithuania, detention and ill-treatment in a CIA detention facility in
Lithuania and transfer out of Lithuania and the applicant’s lack of
victim status ..............................................................................................193
1. The Government .............................................................................................. 193
2. The applicant.................................................................................................... 195
3. The Court’s assessment ................................................................................... 197
B. Non-compliance with the rule of exhaustion of domestic remedies
and the six-month rule...............................................................................198
1. The Government .............................................................................................. 198
(a) Non-exhaustion of domestic remedies .................................................... 198
(b) Non-compliance with the six-month rule................................................ 199
2. The applicant.................................................................................................... 200
(a) Non-exhaustion of domestic remedies .................................................... 200
(b) Non-compliance with the six-month rule................................................ 201
3. The Court’s assessment ................................................................................... 201
II. THE COURT’S ESTABLISHMENT OF THE FACTS AND
ASSESSMENT OF EVIDENCE..................................................................202
A. The parties’ positions on the facts and evidence.......................................202
1. The Government .............................................................................................. 202
(a) Lack of credibility of evidence adduced by the applicant....................... 202
(b) Lack of evidence demonstrating that certain CIA-linked planes
landing in Lithuania between 17 February 2005 and 25 March 2006
carried out extraordinary rendition missions........................................... 203
(c) Lack of evidence demonstrating that a CIA secret detention facility
operated in Lithuania and that the applicant was detained in that
facility ..................................................................................................... 205
(i) As regards the alleged existence of a CIA secret detention
facility............................................................................................... 205
(ii) As regards the applicant’s alleged secret detention in Lithuania ..... 208
(d) Lack of evidence demonstrating that the Lithuanian authorities
agreed to the running of a secret detention facility by the CIA on
Lithuanian territory or cooperated in the execution of the HVD
Programme .............................................................................................. 209
(e) Lack of evidence of Lithuania’s knowledge of the CIA HVD
Programme at the material time .............................................................. 210
2. The applicant.................................................................................................... 210
(a) As regards the Government’s allegation of a lack of credibility of
sources of information and evidence before the Court ........................... 210
(b) As regards the CIA-linked planes landing in Lithuania between
17 February 2005 and 25 March 2006 .................................................... 211
viiiABU ZUBAYDAH v. LITHUANIA JUDGMENT
(c) As regards the existence of a CIA secret detention facility in
Lithuania and the applicant’s secret detention in Lithuania.................... 212
(d) As regards the Lithuanian authorities’ agreement to the running of
a secret detention facility by the CIA on Lithuanian territory and
their complicity in the execution of the HVD Programme ..................... 215
(e) As regards Lithuania’s knowledge of the CIA HVD Programme at
the material time...................................................................................... 215
B. Joint submissions by Amnesty International (AI) and the
International Commission of Jurists (ICJ) on public knowledge of
US practices in respect of captured terrorist suspects...............................216
C. HFHR submissions ....................................................................................219
D. The parties’ positions on the standard and burden of proof ......................219
1. The Government .............................................................................................. 219
2. The applicant.................................................................................................... 220
E. The Court’s assessment of the facts and evidence..................................... 221
1. Applicable principles deriving from the Court’s case-law .............................. 221
2. Preliminary considerations concerning the assessment of the facts and
evidence in the present case........................................................................... 223
3. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning his transfers and
secret detention by the CIA before his rendition to Lithuania (27 March
2002 to 17 or 18 February 2005) ................................................................... 224
(a) Period from 27 March 2002 to 22 September 2003 ................................ 224
(b) Whether the applicant’s allegations concerning his secret detention
and transfers in CIA custody from 22 September 2003 (transfer out
of Poland) to 17 or 18 February 2005 (transfer out of Morocco)
were proved before the Court.................................................................. 225
4. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning his rendition by the
CIA to Lithuania, secret detention in Lithuania and transfer by the CIA
out of Lithuania (17 or 18 February 2005 to 25 March 2006)....................... 227
(a) Whether a CIA secret detention facility existed in Lithuania at the
time alleged by the applicant (17 or 18 February 2005 to 25 March
2006) ....................................................................................................... 227
(b) Whether the applicant’s allegations concerning his rendition to
Lithuania, secret detention at the CIA Detention Site Violet in
Lithuania and transfer from Lithuania to another CIA detention
facility elsewhere were proved before the Court .................................... 241
(i) Preliminary considerations ................................................................ 241
(ii) Transfers and secret detention.......................................................... 242
(iii) The applicant’s treatment in CIA custody in Lithuania .................. 247
ixABU ZUBAYDAH v. LITHUANIA JUDGMENT
5. As regards the establishment of the facts and assessment of evidence relevant
to the applicant’s allegations concerning Lithuania’s
knowledge of and complicity in the CIA HVD Programme.......................... 249
(a) Relations of cooperation between the Lithuanian authorities and the
CIA, including an agreement to host a CIA detention facility,
acceptance of a financial reward for supporting the HVD
Programme and assistance in the acquisition and adaptation of the
premises for the CIA’s activities (Project No. 1 and Project No. 2)....... 249
(i) Agreement to host a CIA detention facility and acceptance of a
financial reward for supporting the HVD Programme..................... 249
(ii) Assistance in the acquisition and adaptation of the premises for
the CIA’s activities (Project No. 1 and Project No. 2)..................... 251
(b) Assistance in disguising the CIA rendition aircraft routes through
Lithuania by means of the so-called “dummy” flight planning .............. 251
(c) Special procedure for CIA flights............................................................ 252
(d) Circumstances routinely surrounding HVDs transfers and reception
at the CIA “black site” ............................................................................ 252
(e) Public knowledge of treatment to which captured terrorist suspects
were subjected in US custody in 2002-2005........................................... 253
(f) Informal transatlantic meeting ................................................................. 254
6. The Court’s conclusion as to the Lithuanian authorities’ knowledge of
and complicity in the CIA HVD Programme................................................. 255
III. LITHUANIA’S JURISDICTION AND RESPONSIBILITY
UNDER THE CONVENTION AND THE APPLICANT’S VICTIM
STATUS .........................................................................................................258
A. The parties’ submissions ...........................................................................258
B. The Court’s assessment .............................................................................258
1. As regards jurisdiction..................................................................................... 259
2. As regards the State’s responsibility for an applicant’s treatment and
detention by foreign officials on its territory ................................................. 259
3. As regards the State’s responsibility for an applicant’s removal from its
territory........................................................................................................... 260
4. Conclusion as to the Lithuanian Government’s preliminary objections
that
Lithuania lacks jurisdiction and responsibility under the
Convention and as to the applicant’s victim status........................................ 261
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION .............................................................................................262
A. Procedural aspect of Article 3 ...................................................................263
1. The parties’ submissions.................................................................................. 263
(a) The Government...................................................................................... 263
(b) The applicant........................................................................................... 265
2. Joint submissions by Amnesty International (AI) and the International
Commission of Jurists (ICJ) on “effective investigation” ............................. 267
3. The Court’s assessment ................................................................................... 268
(a) Admissibility ........................................................................................... 268
(b) Merits....................................................................................................... 268
xABU ZUBAYDAH v. LITHUANIA JUDGMENT
(i) Applicable general principles deriving from the Court’s case-
law .................................................................................................... 268
(ii) Application of the above principles to the present case ................... 270
B. Substantive aspect of Article 3 ..................................................................273
1. The parties’ submissions.................................................................................. 273
(a) The Government...................................................................................... 273
(b) The applicant........................................................................................... 273
2. The Court’s assessment ................................................................................... 274
(a) Admissibility ........................................................................................... 274
(b) Merits....................................................................................................... 275
(i) Applicable general principles deriving from the Court’s case-
law .................................................................................................... 275
(ii) Application of the above principles to the present case ................... 276
(α) Treatment to which the applicant was subjected at the
relevant time .............................................................................. 277
(β) Court’s conclusion as to Lithuania’s responsibility................... 279
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION....281
A. The parties’ submissions ...........................................................................282
1. The Government .............................................................................................. 282
2. The applicant.................................................................................................... 282
B. The Court’s assessment .............................................................................283
1. Admissibility.................................................................................................... 283
2. Merits............................................................................................................... 283
(a) Applicable general principles deriving from the Court’s case-law ......... 283
(b) Application of the above principles to the present case .......................... 284
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION ............................................................................................285
A. The parties’ submissions ...........................................................................286
1. The Government .............................................................................................. 286
2. The applicant.................................................................................................... 286
B. The Court’s assessment .............................................................................287
1. Admissibility.................................................................................................... 287
2. Merits............................................................................................................... 287
VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION
WITH ARTICLE 3 OF THE CONVENTION...........................................288
A. The parties’ submissions ...........................................................................288
B. The Court’s assessment .............................................................................288
1. Admissibility.................................................................................................... 288
2. Merits............................................................................................................... 288
(a) Applicable general principles deriving from the Court’s case-law ......... 288
(b) Application of the above principles to the present case .......................... 289
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
xi
VIII. APPLICATION
OF
ARTICLES
46
AND
41
OF
THE
CONVENTION .............................................................................................290
A. Article 46 of the Convention .....................................................................290
B. Article 41 of the Convention .....................................................................293
1. Damage ............................................................................................................ 293
2. Costs and expenses .......................................................................................... 294
3. Default interest................................................................................................. 294
ANNEX I: List of abbreviations used in the Court’s judgment......................296
ANNEX II: List of references to the Court’s case-law..................................... 301
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
1
In the case of Abu Zubaydah v. Lithuania,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Robert Spano,
Aleš Pejchal,
Egidijus Kūris,
Mirjana Lazarova Trajkovska,
Paul Mahoney, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 28 and 29 June 2016 and 10 April 2018,
Delivers the following judgment, which was adopted on the last of these
dates:
PROCEDURE
1. The case originated in an application (no. 46454/11) against the
Republic of Lithuania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin
Muhammad Husayn, also known as Abu Zubaydah (“the applicant”), on
14 July 2011.
2. The applicant was represented before the Court by Ms H. Duffy, a
lawyer practising in The Hague, Mr G.B. Mickum IV, member of the
District of Columbia and Virginia Bars, and Mr J. Margulies, member of the
Illinois Bar. The Lithuanian Government (“the Government”) were
represented by their Agent, Ms K. Bubnytė.
3. The applicant alleged, in particular:
(i) a breach of Articles 3, 5 and 8 of the Convention on account of the
fact that Lithuania had enabled the Central Intelligence Agency of the
United States (“the CIA”) to detain him secretly on its territory, thereby
allowing the CIA to subject him to treatment that amounted to torture,
incommunicado detention, various forms of mental and physical abuse and
deprivation of any access to, or contact with, his family or the outside
world;
(ii) a breach of Articles 3, 5 and 8 of the Convention on account of the
fact that Lithuania had enabled the CIA to transfer him from its territory,
thereby exposing him to years of further torture, ill-treatment, secret and
arbitrary detention and physical abuse in the hands of the US authorities, as
well as lack of any contact with his family;
2
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
(iii) a breach of Article 13 taken separately and in conjunction with
Article 3 on account of Lithuania’s failure to conduct an effective
investigation into his allegations of serious violations of Article 3 of the
Convention.
4. The application was allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules of Court).
5. On 14 December 2012 the President of the Second Section accorded
priority to the application, in accordance with Rule 41 and gave notice of
the application to the Government, in accordance with Rule 54 § 2 (b).
6. The Government and the applicant each filed written observations on
the admissibility and merits of the case. In addition, third-party comments
were received from the Helsinki Foundation for Human Rights (“HFHR”),
Amnesty International (hereinafter also referred to as “AI”) and the
International Commission of Jurists (hereinafter also referred to as “ICJ”).
7. On 17 March 2015 the Chamber that had been constituted to consider
the case (Rule 26 § 1) decided to ask the Government to submit
documentary evidence, including declassified parts of the material from the
criminal investigation into the applicant’s allegations that was conducted in
Lithuania and flight data concerning the alleged landings of CIA rendition
aircraft in Lithuania. The parties were also invited to produce any further
evidence on which they wished to rely before the Court and make comments
on the case in the light of the Court’s judgments in El-Masri (see El-Masri
v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09,
ECHR 2012), Al Nashiri v. Poland (see Al Nashiri v. Poland, no. 28761/11,
24 July 2014), and Husayn (Abu Zubaydah) v. Poland (see Husayn (Abu
Zubaydah) v. Poland, no. 7511/13, 24 July 2014).
8. Following the re-composition of the Court’s Sections, the application
was assigned to the First Section of the Court, pursuant to Rule 52 § 2.
9. Subsequently, the Chamber of the First Section that had been
constituted to consider the case, having consulted the parties, decided that a
public hearing on the admissibility and merits of the case be held on 29 June
2016.
The Chamber also decided, of its own motion, to hear evidence from
experts (Rule A1 of the Annex to the Rules of Court). The date for a
fact-finding hearing was set for 28 June 2016.
In this connection, the President of the Chamber directed that verbatim
records of both hearings be made, pursuant to Rule 70 of the Rules of Court
and Rule A8 of the Annex to the Rules of Court, and instructed the
Registrar accordingly.
10. On 28 June 2016 the Chamber held a fact-finding hearing and took
evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the
Annex.
11. In the course of the fact-finding hearing the parties were also invited
to state their position on the confidentiality of certain documents produced
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
3
by the Lithuanian Government (Rule 33 § 2), in particular those relating to
the criminal investigation, including a summary of witness evidence and
some other material collected in the context of that investigation (see also
paragraphs 178-199, 301-346, 357, 362, 365 and 367-368 below). The
applicant was in favour of full disclosure, whereas the Government
considered that the confidentiality of all documents submitted by them
should be maintained. The Court decided to invite the Government to
prepare a redacted version of the confidential documents after the hearing
and instructed the parties that at the public hearing confidentiality was to be
respected in a manner which would not lead to disclosure of sources of
evidence obtained in the criminal investigation or the identities of witnesses
or third parties involved.
12. A public hearing took place in public in the Human Rights Building,
Strasbourg, on 29 June 2016 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms K. BUBNYTĖ, Agent of the Government of the Republic of
Lithuania to the European Court of Human Rights,
Mr P. GRICIŪNAS, the Vice Minister of Justice of the Republic of
Lithuania,
Mr E. PAŠILIS, the Prosecutor General of the Republic of Lithuania;
(b) for the applicant
Ms H. DUFFY, Counsel,
Ms A. JACOBSEN, Counsel.
The Court heard addresses by Mr Griciūnas, Mr Pašilis and Ms Duffy.
13. The Government, in their oral submissions, stated that they wished
to withdraw their request to apply Rule 33 § 2 in respect of all documents
submitted by them, except to the extent necessary to ensure the protection of
personal data.
14. The fact-finding hearing and the public hearing were presided over
by Mirjana Lazarova Trajkovska, former President of the First Section of
the Court. Following the end of her term of office and elections of Section
Presidents, Linos-Alexandre Sicilianos, President of the First Section,
became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges
Lazarova-Trajkovska and Mahoney continued to deal with the case after the
end of their terms of office (Rule 26 § 3).
4
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
THE FACTS
15. The applicant was born in 1971 and is currently detained in the
Internment Facility at the US Guantánamo Bay Naval Base in Cuba.
I. PRELIMINARY
CONSIDERATIONS
REGARDING
THE
ESTABLISHMENT OF THE FACTS
16. It is to be noted that in the present case involving, as the applicant’s
previous application before the Court, complaints of secret detention and
torture to which the applicant was allegedly subjected during the
extraordinary rendition operations by the United States authorities (see
paragraphs 19-88 below) the Court is deprived of the possibility of
obtaining any form of direct account of the events complained of from the
applicant (see Husayn (Abu Zubaydah) v. Poland, cited above, § 397; and
Al Nashiri v. Poland, cited above, § 397; see also paragraph 90 below).
As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both
cited above), in the present case the facts as adduced by the applicant were
to a considerable extent a reconstruction of dates and other elements
relevant to his rendition, detention and treatment in the US authorities’
custody, based on various publicly available sources of information. The
applicant’s version of the facts as stated in his initial application of 14 July
2011 evolved and partly changed during the proceedings before the Court
(see paragraphs 111-117 below).
The respondent Government contested the applicant’s version of the facts
on all accounts, maintaining that there was no evidence demonstrating that
they had occurred in Lithuania (see paragraphs 398-405 and 423-446
below).
17. In consequence, the facts of the case as rendered below (see
paragraphs 90-211 below) are based on the applicant’s account
supplemented by various items of evidence in the Court’s possession.
II. EVIDENCE BEFORE THE COURT
18. In order to establish the facts of the case the Court relied on its
findings in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland
(both cited above), documentary evidence supplied by the applicant and the
Government, including witness testimony obtained in the criminal
investigation (see paragraphs 304-349 below), observations of the parties,
material available in the public domain (see paragraphs 234-263 below),
and testimony of experts who had given oral evidence before the Court at
the fact-finding hearing held on 28 June 2016 (see paragraphs 372-395
below).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
5
In the course of that hearing the Court, with the participation of the
parties, took evidence from the following persons:
(1) Senator Dick Marty, in his capacity as Rapporteur of the
Parliamentary Assembly of the Council of Europe (“PACE”) in the inquiry
into allegations of CIA secret detention facilities in the Council of Europe’s
member States (hereinafter “the Marty Inquiry” – see paragraphs 269-280
below);
(2) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty
Inquiry and advisor to Mr Hammarberg, the former Commissioner for
Human Rights of the Council of Europe, who had dealt with, among other
things, compiling data on flights associated with the CIA extraordinary
rendition (see paragraphs 266-274, 370-375 and 382-386 below), as well as
an expert who had submitted a report on the applicant’s case in El-Masri
(cited above, § 75) and who had given oral evidence before the Court in the
cases of Husayn (Abu Zubaydah) v. Poland (cited above, §§ 42, 305-312
and 318-325) and Al Nashiri v. Poland (cited above, §§ 42, 311-318
and 324-331) and also in connection with his investigative activities
concerning the CIA extraordinary rendition operations in general.
In the course of giving evidence to the Court, Senator Marty and
Mr J.G.S. also gave a PowerPoint presentation entitled “Distillation of
available documentary evidence, including flight data, in respect of
Lithuania and the case of Abu Zubaydah”;
(3) Mr Crofton Black, in his capacity as an investigator at the Bureau of
Investigative Journalism, an expert in the European Parliament Committee
on Civil Liberties, Justice and Home Affairs’ (“LIBE Committee”)
investigation of alleged transportation and illegal detention of prisoners in
European countries by the CIA (see paragraphs 284-291 and 387 below)
and also in connection with his involvement in research and various
investigative tasks concerning the CIA extraordinary rendition operations in
general, including tasks performed for the UK-based non-governmental
organisation Reprieve.
19. The relevant passages from the experts’ testimony are reproduced
below (see paragraphs 126-145 and 372-395 below).
III. BACKGROUND TO THE CASE
A. The so-called “High-Value Detainee Programme”
20. On an unspecified date following 11 September 2001 the CIA
established a programme in the Counterterrorist Center (“CTC”) to detain
and interrogate terrorists at sites abroad. In further documents the US
authorities referred to it as “the CTC program” (see also paragraph 35
below) but, subsequently, it was also called “the High-Value Detainee
Program” (“the HVD Programme”) or the Rendition Detention Interrogation
6
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Program (“the RDI Programme”). In the Council of Europe’s documents it
is also described as “the CIA secret detention programme” or “the
extraordinary rendition programme” (see also paragraphs 264-280 below).
For the purposes of the present case, it is referred to as “the HVD
Programme”.
21. A detailed description of the HVD Programme made on the basis of
materials that were available to the Court in the case of Husayn (Abu
Zubaydah) v. Poland on the date of adoption of the judgment (8 July 2014)
can be found in paragraphs 47-69 of that judgment. Those materials
included the classified CIA documents released in redacted versions in
2009-2010 (see also paragraphs 34-56 below).
22. On 9 December 2014 the United States authorities released the
Findings and Conclusions and, in a heavily redacted version, the Executive
Summary of the US Senate Select Committee on Intelligence’s “Study of
the Central Intelligence Agency’s Detention and Interrogation Program”.
The full Committee Study – as stated therein, “the most comprehensive
review ever conducted of the CIA Detention and Interrogation Program” –
which is more than 6,700 pages long, remains classified. The declassified
Executive Summary (hereinafter “the 2014 US Senate Committee Report”)
comprises 499 pages (for further details concerning the US Senate’s review
of the CIA’s activities involved in the HVD Programme see
paragraphs 70-89 below).
23. The 2014 US Senate Committee Report disclosed new facts and
provided a significant amount of new information, mostly based on the CIA
classified documents, about the CIA extraordinary rendition and secret
detention operations, their foreign partners or co-operators, as well as the
plight of certain detainees, including the applicant in the present case (see
also paragraphs 76, 80-81 and 92-96 below). However, all names of the
countries on whose territories the CIA carried out its extraordinary rendition
and secret detention operations were redacted and all foreign detention
facilities were colour code-named. The 2014 US Senate Committee Report
explains that the CIA requested that the names of countries that hosted CIA
detention sites, or with which the CIA negotiated hosting sites, as well as
information directly or indirectly identifying countries be redacted. The
countries were accordingly listed by a single letter of alphabet, a letter
which was nevertheless blackened throughout the document. Furthermore,
at the CIA’s request the original code names for CIA detention sites were
replaced with new identifiers – the above-mentioned colour code-names.
24. The 2014 US Senate Committee Report refers to eight specifically
colour code-named CIA detention sites located abroad: “Detention Site
Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site
Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site
Orange” and “Detention Site Brown” (see also paragraph 166 below).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
7
25. The description of the HVD Programme given below is based on the
CIA declassified documents that were available to the Court in Husayn (Abu
Zubaydah) v. Poland and Al Nashiri v. Poland, supplemented by the 2014
US Senate Committee Report.
1. The establishment of the HVD Programme
(a) The US President’s memoranda
(i) Memorandum of 17 September 2001
26. The 2014 US Senate Committee Report states that on 17 September
2001 President George W. Bush signed a covert action Memorandum of
Notification (“the MON”) to authorise the Director of the CIA to “undertake
operations designed to capture and detain persons who pose a continuing,
serious threat of violence or death to U.S. persons and interests or who are
planning terrorist activities”. Although the CIA had previously been
provided with certain limited authority to detain specific, named individuals
pending the issuance of formal criminal charges, the MON provided
unprecedented authority, granting the CIA significant discretion in
determining whom to detain, the factual basis for the detention, and the
length of their detention. The MON made no reference to interrogations or
interrogation techniques.
27. Before the issuance of the MON, on 14 September 2001, the Chief
of operations of the CIA, based on an urgent request from the Chief of the
CTC, had sent an email to CIA Stations seeking input on appropriate
locations for potential CIA detention facilities.
28. A CIA internal memorandum, entitled “Approval to Establish a
Detention Facility for Terrorists”, drawn up on an unspecified date in
November 2001, explained that detention at a US military base outside of
the USA was “the best option”. In the context of risks associated with the
CIA maintaining a detention facility, it warned that “as captured terrorists
may be held days, months, or years, the likelihood of exposure will grow
over time”. It anticipated that “in a foreign country, close cooperation with
the host government will entail intensive negotiations” and warned that “any
foreign country poses uncontrollable risks that could create incidents,
vulnerability to the security of the facility, bilateral problems, and
uncertainty over maintaining the facility”. The memorandum recommended
the establishment of a “short-term” facility in which the CIA’s role would
be limited to oversight, funding and responsibility”.
It further stated that the CIA would “contract out all other requirements
to other US Government organizations, commercial companies and, as
appropriate, foreign governments”.
8
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
(ii) Memorandum of 7 February 2002
29. On 7 February 2002 President Bush issued a memorandum stating
that neither al-Qaeda nor Taliban detainees qualified as prisoners of war
under the Geneva Conventions and that Common Article 3 of the Geneva
Conventions (see paragraphs 226-231 below), requiring humane treatment
of individuals in a conflict, did not apply to them. The text of the order read,
in so far as relevant, as follows:
“...
2. Pursuant to my authority as commander in chief and chief executive of the
United States, and relying on the opinion of the Department of Justice dated January
22, 2002, and on the legal opinion rendered by the attorney general in his letter of
February 1, 2002, I hereby determine as follows:
a. I accept the legal conclusion of the Department of Justice and determine that
none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or
elsewhere throughout the world because, among other reasons, al-Qaida is not a High
Contracting Party to Geneva.
...
c. I also accept the legal conclusion of the Department of Justice and determine that
common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees,
because, among other reasons, the relevant conflicts are international in scope and
common Article 3 applies only to armed conflict not of an international character.’
d. Based on the facts supplied by the Department of Defense and the
recommendation of the Department of Justice, I determine that the Taliban detainees
are unlawful combatants and, therefore, do not qualify as prisoners of war under
Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with
al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.
3. Of course, our values as a nation, values that we share with many nations in the
world, call for us to treat detainees humanely, including those who are not legally
entitled to such treatment. Our nation has been and will continue to be a strong
supporter of Geneva and its principles. As a matter of policy, the United States Armed
Forces shall continue to treat detainees humanely and, to the extent appropriate and
consistent with military necessity, in a manner consistent with the principles of
Geneva.
...
6. I hereby direct the secretary of state to communicate my determinations in an
appropriate manner to our allies, and other countries and international organizations
cooperating in the war against terrorism of global reach.”
30. On the same day, at the press conference, the White House Press
Secretary announced the President’s decision. The President’s memorandum
was subsequently widely commented in the US and international media.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
9
(b) Abu Zubaydah’s capture and transfer to a CIA covert detention facility in
March 2002
31. On 27 March 2002 the Pakistani authorities working with the CIA
captured Abu Zubaydah, the applicant in the present case and the first
so-called “high-value detainee” (“HVD”) in Faisalabad, Pakistan.
Abu Zubaydah’s capture accelerated the development of the HVD
Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84).
32. According to the 2014 US Senate Committee Report, in late March
2002, anticipating its eventual custody of Abu Zubaydah, the CIA began
considering options for his transfer to CIA custody and detention under the
MON. The CIA rejected the option of US military custody, mostly relying
on the lack of security and the fact that in such a case Abu Zubaydah would
have to be declared to the International Committee of the Red Cross
(ICRC).
33. On 29 March 2002 President Bush approved moving forward with
the plan to transfer Abu Zubaydah to a covert detention facility, codenamed
“Detention Site Green” in a country whose name was blackened in the 2014
US Senate Committee Report (see also paragraphs 92-96 below).
The report further states:
“Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name
redacted] where he was held at the first CIA detention site, referred to in this summary
as ‘DETENTION SITE GREEN’.”
(c) Setting up the CIA programme “to detain and interrogate terrorists at
sites abroad”
34. On 24 August 2009 the US authorities released a report prepared by
John Helgerson, the CIA Inspector General, in 2004 (“the 2004 CIA
Report”). The document, dated 7 May 2004 and entitled “Special Review
Counterterrorism
Detention
and
Interrogation
Activities
September 2001-October 2003”, with appendices A-F, had previously been
classified as “top secret”. It was considerably redacted; overall, more than
one-third of the 109-page document was blackened out.
35. The report, which covers the period from September 2001 to
mid-October 2003, begins with a statement that in November 2002 the
CIA Deputy Director for Operations (“the DDO”) informed the Office of
Inspector General (“OIG”) that the Agency had established a programme in
the CTC “to detain and interrogate terrorists at sites abroad”.
36. The background of the HVD Programme was explained in
paragraphs 4-5 as follows:
“4. [REDACTED] the Agency began to detain and interrogate directly a number of
suspected terrorists. The capture and initial Agency interrogation of the first
high-value detainee, Abu Zubaydah, in March 2002, presented the Agency with a
significant dilemma. The Agency was under pressure to do everything possible to
prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah
was withholding information that could not be obtained through then-authorized
10
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
interrogation techniques. Agency officials believed that a more robust approach was
necessary to elicit threat information from Abu Zubaydah and possibly from other
senior Al’Qaeda high value detainees.
5. [REDACTED] The conduct of detention and interrogation activities presented
new challenges for CIA. These included determining where detention and
interrogation facilities could be securely located and operated, and identifying and
preparing qualified personnel to manage and carry out detention and interrogation
activities. With the knowledge that Al’Qaeda personnel had been trained in the use of
resistance techniques, another challenge was to identify interrogation techniques that
Agency personnel could lawfully use to overcome the resistance. In this context,
CTC, with the assistance of the Office of Technical Service (OTS), proposed certain
more coercive physical techniques to use on Abu Zubaydah. All of these
considerations took place against the backdrop of pre-September 11, 2001
CIA avoidance of interrogations and repeated US policy statements condemning
torture and advocating the humane treatment of political prisoners and detainees in the
international community.”
37. As further explained in the 2004 CIA Report, “terrorist targets” and
detainees referred to therein were generally categorised as “high value” or
“medium value”. This distinction was based on the quality of intelligence
that they were believed likely to be able to provide about current terrorist
threats against the United States. “Medium-value detainees” were
individuals believed to have lesser direct knowledge of terrorist threats but
to have information of intelligence value. “High-value detainees” (also
called “HVDs”) were given the highest priority for capture, detention and
interrogation. In some CIA documents they are also referred to as
“high-value targets” (“HVTs”).
2. Enhanced Interrogation Techniques
(a) Description of legally sanctioned standard and enhanced interrogation
techniques
38. According to the 2004 CIA Report, in August 2002 the
US Department of Justice had provided the CIA with a legal opinion
determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”),
to be applied to suspected terrorists, would not violate the prohibition of
torture.
39. The EITs are described in paragraph 36 of the 2004 CIA Report as
follows:
“[1.] The attention grasp consists of grasping the detainee with both hands, with one
hand on each side of the collar opening, in a controlled and quick motion. In the same
motion as the grasp, the detainee is drawn toward the interrogator.
[2.] During the walling technique, the detainee is pulled forward and then quickly
and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His
head and neck are supported with a rolled towel to prevent whiplash.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
11
[3.] The facial hold is used to hold the detainee’s head immobile. The interrogator
places an open palm on either side of the detainee’s face and the interrogator’s
fingertips are kept well away from the detainee’s eyes.
[4.] With the facial or insult slap, the fingers are slightly spread apart. The
interrogator’s hand makes contact with the area between the tip of the detainee’s chin
and the bottom of the corresponding earlobe.
[5.] In cramped confinement, the detainee is placed in a confined space, typically a
small or large box, which is usually dark. Confinement in the smaller space lasts no
more than two hours and in the larger space it can last up to 18 hours.
[6.] Insects placed in a confinement box involve placing a harmless insect in the
box with the detainee.
[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with
his feet spread approximately to his shoulder width. His arms are stretched out in front
of him and his fingers rest on the wall to support all of his body weight. The detainee
is not allowed to reposition his hands or feet.
[8.] The application of stress positions may include having the detainee sit on the
floor with his legs extended straight out in front of him with his arms raised above his
head or kneeling on the floor while leaning back at a 45 degree angle.
[9.] Sleep deprivation will not exceed 11 days at a time.
[10.] The application of the waterboard technique involves binding the detainee to a
bench with his feet elevated above his head. The detainee’s head is immobilized and
an interrogator places a cloth over the detainee’s mouth and nose while pouring water
onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and
the technique produces the sensation of drowning and suffocation.”
40. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on
Medical and Psychological Support to Detainee Interrogations, of
4 September 2003) refers to “legally sanctioned interrogation techniques”.
It states, among other things, that “captured terrorists turned over to the
CIA for interrogation may be subjected to a wide range of legally
sanctioned techniques. ... These are designed to psychologically ‘dislocate’
the detainee, maximize his feeling of vulnerability and helplessness, and
reduce or eliminate his will to resist ... efforts to obtain critical intelligence”.
The techniques included, in ascending degree of intensity:
(1) Standard measures (that is, without physical or substantial
psychological pressure): shaving; stripping; diapering (generally for periods
not greater than 72 hours); hooding; isolation; white noise or loud music (at
a decibel level that will not damage hearing); continuous light or darkness;
uncomfortably cool environment; restricted diet, including reduced caloric
intake (sufficient to maintain general health); shackling in upright, sitting,
or horizontal position; water dousing; sleep deprivation (up to 72 hours).
(2) Enhanced measures (with physical or psychological pressure beyond
the above): attention grasp; facial hold; insult (facial) slap; abdominal slap;
prolonged diapering; sleep deprivation (over 72 hours); stress positions: on
knees body slanted forward or backward or leaning with forehead on wall;
walling; cramped confinement (confinement boxes) and waterboarding.
12
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
41. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo
Acting General Counsel of the Central Intelligence Agency of 1 August
2002) was prepared by Jay S. Baybee, Assistant Attorney General in
connection with the application of the EITs to Abu Zubaydah, the first
high-ranking al-Qaeda prisoner who was to be subjected to those
interrogation methods. This document, a classified analysis of specific
interrogation techniques proposed for use in the interrogation of
Abu Zubaydah, was declassified in 2009.
It concludes that, given that “there is no specific intent to inflict severe
mental pain or suffering ...” the application “of these methods separately or
a course of conduct” would not violate the prohibition of torture as defined
in section 2340 of title 18 of the United States Code.
42. The US Department of Justice Office of Professional Responsibility
Report: “Investigation into the Office of Legal Counsel’s Memoranda
Concerning Issues Relating to the Central Agency’s Use of ‘Enhanced
Interrogation Techniques’ on Suspected Terrorists” (“the 2009 DOJ
Report”) was released by the US authorities in a considerably redacted form
in 2010. The report is 260 pages long but all the parts that seem to refer to
locations of CIA “black sites” or names of interrogators are redacted. It
states, among other things, as follows:
“The issue how to approach interrogations reportedly came to a head after the
capture of a senior al’Qaeda leader, Abu Zubaydah, during a raid in Faisalabad,
Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘black site’, a secret
CIA prison facility [REDACTED] where he was treated for gunshot wounds he
suffered during his capture. ...”
43. According to the 2009 DOJ Report, the CIA psychologists
eventually proposed twelve EITs to be used in the interrogation of
Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap,
cramped confinement, insects, wall-standing, stress positions, sleep
deprivation, use of diapers, waterboarding – the name of the twelfth EIT
was redacted.
(b) Expanding the use of the EITs beyond Abu Zubaydah’s interrogations
44. The 2004 CIA Report states that, subsequently, the CIA Office of
General Counsel (“OGC”) continued to consult with the US Department of
Justice in order to expand the use of EITs beyond the interrogation of
Abu Zubaydah.
According to the report, “this resulted in the production of an undated
and unsigned document entitled Legal principles Applicable to CIA
Detention and Interrogation of Captured Al’Qaeda Personnel’”. Certain
parts of that document are rendered in the 2004 CIA report. In particular,
the report cites the following passages:
“the [Torture] Convention permits the use of [cruel, inhuman, or degrading
treatment] in exigent circumstances, such as a national emergency or war. ... The
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
13
interrogation of Al’Qaeda members does not violate the Fifth and Fourteenth
Amendments because those provisions do not apply extraterritorially, nor does it
violate the Eighth Amendment because it only applies to persons upon whom criminal
sanctions have been imposed. ...
The use of the following techniques and of comparable, approved techniques does
not violate any Federal statute or other law, where the CIA interrogators do not
specifically intend to cause the detainee to undergo severe physical or mental pain or
suffering (i.e., they act with the good faith belief that their conduct will not cause such
pain or suffering): isolation, reduced caloric intake (so long as the amount is
calculated to maintain the general health of the detainees), deprivation of reading
material, loud music or white noise (at a decibel level calculated to avoid damage to
the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap
(insult slap), the abdominal slap, cramped confinement, wall standing, stress
positions, sleep deprivation, the use of diapers, the use of harmless insects, and the
water board.”
The report, in paragraph 44, states that according to OGC this analysis
embodied the US Department of Justice’s agreement that the reasoning of
the classified OLC opinion of 1 August 2002 extended beyond the
interrogation of Abu Zubaydah and the conditions specified in that opinion.
45. The application of the EITs to other terrorist suspects in CIA custody
began in November 2002.
3. Standard procedures and treatment of “high value detainees” in
CIA custody (combined use of interrogation techniques)
46. On 30 December 2004 the CIA prepared a background paper on the
CIA’s combined interrogation techniques (“the 2004 CIA Background
Paper”), addressed to D. Levin, the US Acting Assistant Attorney General.
The document, originally classified as “top secret” was released on
24 August 2009 in a heavily redacted version. It explains standard
authorised procedures and treatment to which high-value detainees – the
HVDs – in CIA custody were routinely subjected from their capture,
through their rendition and reception at a CIA “black site”, to their
interrogation. It “focuses on the topic of combined use of interrogation
techniques, [the purpose of which] is to persuade high-value detainees to
provide threat information and terrorist intelligence in a timely manner. ...
Effective interrogation is based on the concept of using both physical and
psychological pressures in a comprehensive, systematic and cumulative
manner to influence HVD behaviour, to overcome a detainee’s resistance
posture. The goal of interrogation is to create a state of learned helplessness
and dependence ... The interrogation process could be broken into three
separate phases: Initial conditions, transition to interrogation and
interrogation” (see also El-Masri, cited above, § 124).
47. The first section of the 2004 CIA Background Paper, entitled “Initial
Capture”, was devoted to the process of capture, rendition and reception at
the “black site”. It states that “regardless of their previous environment and
14
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
experiences, once a HVD is turned over to CIA a predictable set of events
occur”. The capture is designed to “contribute to the physical and
psychological condition of the HVD prior to the start of interrogation”.
48. The said “predictable set of events” following the capture started
with the rendition, which was described as follows:
“a. The HVD is flown to a Black Site. A medical examination is conducted prior to
the flight. During the flight, the detainee is securely shackled and is deprived of sight
and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is
no interaction with the HVD during this rendition movement except for periodic,
discreet assessments by the on-board medical officer.
b. Upon arrival at the destination airfield, the HVD is moved to the Black Site
under the same conditions and using appropriate security procedures.”
49. The description of the next “event” – the reception at the “black site”
– reads as follows:
“The HVD is subjected to administrative procedures and medical assessment upon
arrival at the Black Site. [REDACTED] the HVD finds himself in the complete
control of Americans; [REDACTED] the procedures he is subjected to are precise,
quiet, and almost clinical; and no one is mistreating him. While each HVD is
different,
the rendition and reception process generally creates significant
apprehension in the HVD because of the enormity and suddenness of the change in
environment, the uncertainty about what will happen next, and the potential dread an
HVD might have of US custody. Reception procedures include:
a. The HVD’s head and face are shaved.
b. A series of photographs are taken of the HVD while nude to document the
physical condition of the HVD upon arrival.
c. A Medical Officer interviews the HVD and a medical evaluation is conducted to
assess the physical condition of the HVD. The medical officer also determines if there
are any contra indications to the use of interrogation techniques.
d. A psychologist interviews the HVD to assess his mental state. The psychologist
also determines if there are any contra indications to the use of interrogation
techniques.”
50. The second section, entitled “Transitioning to Interrogation - The
Initial Interview”, deals with the stage before the application of EITs. It
reads:
“Interrogators use the Initial Interview to assess the initial resistance posture of the
HVD and to determine – in a relatively benign environment – if the HVD intends to
willingly participate with CIA interrogators. The standard on participation is set very
high during the Initial Interview. The HVD would have to willingly provide
information on actionable threats and location information on High-Value Targets at
large not lower level information for interrogators to continue with the neutral
approach. [REDACTED] to HQS. Once approved, the interrogation process begins
provided the required medical and psychological assessments contain no contra
indications to interrogation.”
51. The third section, “Interrogation”, which is largely redacted,
describes the standard combined application of interrogation techniques
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
15
defined
as
(1) “existing
detention
conditions”,
(2) “conditioning
techniques”, (3) “corrective techniques” and (4) “coercive techniques”.
(1) The part dealing with the “existing detention conditions” reads:
“Detention conditions are not interrogation techniques, but they have an impact on
the detainee undergoing interrogation. Specifically, the HVD will be exposed to white
noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the
interrogation process. These conditions provide additional operational security: white
noise/loud sounds mask conversations of staff members and deny the HVD any
auditory clues about his surroundings and deter and disrupt the HVD’s potential
efforts to communicate with other detainees. Constant light provides an improved
environment for Black Site security, medical, psychological, and interrogator staff to
monitor the HVD.”
(2) The “conditioning techniques” are related as follows:
“The HVD is typically reduced to a baseline, dependent state using the three
interrogation techniques discussed below in combination. Establishing this baseline
state is important to demonstrate to the HVD that he has no control over basic human
needs. The baseline state also creates in the detainee a mindset in which he learns to
perceive and value his personal welfare, comfort, and immediate needs more than the
information he is protecting. The use of these conditioning techniques do not
generally bring immediate results; rather, it is the cumulative effect of these
techniques, used over time and in combination with other interrogation techniques and
intelligence exploitation methods, which achieve interrogation objectives. These
conditioning techniques require little to no physical interaction between the detainee
and the interrogator. The specific conditioning interrogation techniques are
a. Nudity. The HVD’s clothes are taken and he remains nude until the interrogators
provide clothes to him.
b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin
sleep deprivation. Other shackling procedures may be used during interrogations. The
detainee is diapered for sanitary purposes; although the diaper is not used at all times.
c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular
intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.”
(3) The “corrective techniques”, which were applied in combination
with the “conditioning techniques”, are defined as those requiring “physical
interaction between the interrogator and detainee” and “used principally to
correct, startle, or to achieve another enabling objective with the detainee”.
They are described as follows:
“These techniques – the insult slap, abdominal slap, facial hold, and attention
grasp – are not used simultaneously but are often used interchangeably during an
individual interrogation session. These techniques generally are used while the
detainee is subjected to the conditioning techniques outlined above (nudity, sleep
deprivation, and dietary manipulation). Examples of application include:
a. The insult slap often is the first physical technique used with an HVD once an
interrogation begins. As noted, the HVD may already be nude, in sleep deprivation,
and subject to dietary manipulation, even though the detainee will likely feel little
effect from these techniques early in the interrogation. The insult slap is used
sparingly but periodically throughout the interrogation process when the interrogator
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
needs to immediately correct the detainee or provide a consequence to a detainee’s
response or non-response. The interrogator will continually assess the effectiveness of
the insult slap and continue to employ it so long as it has the desired effect on the
detainee. Because of the physical dynamics of the various techniques, the insult slap
can be used in combination with water dousing or kneeling stress positions. Other
combinations are possible but may not be practical.
b. Abdominal Slap. The abdominal slap is similar to the insult slap in application
and desired result. It provides the variation necessary to keep a high level of
unpredictability in the interrogation process. The abdominal slap will be used
sparingly and periodically throughout the interrogation process when the interrogator
wants to immediately correct the detainee [REDACTED], and the interrogator will
continually assess its effectiveness. Because of the physical dynamics of the various
techniques, the abdominal slap can be used in combination with water dousing, stress
positions, and wall standing. Other combinations are possible but may not be
practical.
c. Facial Hold. The facial hold is a corrective technique and is used sparingly
throughout interrogation. The facial hold is not painful and is used to correct the
detainee in a way that demonstrates the interrogator’s control over the HVD
[REDACTED]. Because of the physical, dynamics of the various techniques, the
facial hold can be used in combination with water dousing, stress positions, and wall
standing. Other combinations are possible but may not be practical.
d. Attention Grasp. It may be used several times in the same interrogation. This
technique is usually applied [REDACTED] grasp the HVD and pull him into close
proximity of the interrogator (face to face). Because of the physical dynamics of the
various techniques, the attention grasp can be used in combination with water dousing
or kneeling stress positions. Other combinations are possible but may not be
practical.”
(4) The “coercive techniques”, defined as those placing a detainee “in
more physical and psychological stress and therefore considered more
effective tools in persuading a resistant HVD to participate with CIA
interrogators”, are described as follows:
“These techniques – walling, water dousing, stress positions, wall standing, and
cramped confinement – are typically not used in combination, although some
combined use is possible. For example, an HVD in stress positions or wall standing
can be water doused at the same time. Other combinations of these techniques may be
used while the detainee is being subjected to the conditioning techniques discussed
above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive
techniques include:
a. Walling. Walling is one of the most effective interrogation techniques because it
wears down the HVD physically, heightens uncertainty in the detainee about what the
interrogator may do to him, and creates a sense of dread when the HVD knows he is
about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may
be walled one time (one impact with the wall) to make a point or twenty to thirty
times consecutively when the interrogator requires a more significant response to a
question. During an interrogation session that is designed to be intense, an HVD will
be walled multiple times in the session. Because of the physical dynamics of walling,
it is impractical to use it simultaneously with other corrective or coercive techniques.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
17
b. Water Dousing. The frequency and duration of water dousing applications are
based on water temperature and other safety considerations as established by OMS
guidelines. It is an effective interrogation technique and may be used frequently
within those guidelines. The physical dynamics of water dousing are such that it can
be used in combination with other corrective and coercive techniques. As noted
above, an HVD in stress positions or wall standing can be water doused. Likewise, it
is possible to use the insult slap or abdominal slap with an HVD during water dousing.
c. Stress Positions. The frequency and duration of use of the stress positions are
based on the interrogator’s assessment of their continued effectiveness during
interrogation. These techniques are usually self-limiting in that temporary muscle
fatigue usually leads to the HVD being unable to maintain the stress position after a
period of time. Stress positions requiring the HVD to be in contact with the wall can
be used in combination with water dousing and abdominal slap. Stress positions
requiring the HVD to kneel can be used in combination with water dousing, insult
slap, abdominal slap, facial hold, and attention grasp.
d. Wall Standing. The frequency and duration of wall standing are based on the
interrogator’s assessment of its continued effectiveness during interrogation. Wall
standing is usually self-limiting in that temporary muscle fatigue usually leads to the
HVD being unable to maintain the position after a period of time. Because of the
physical dynamics of the various techniques, wall standing can be used in
combination with water dousing and abdominal slap. While other combinations are
possible, they may not be practical.
e. Cramped Confinement. Current OMS guidance on the duration of cramped
confinement limits confinement in the large box to no more than 8 hours at a time for
no more than 18 hours a day, and confinement in the small box to 2 hours.
[REDACTED] Because of the unique aspects of cramped confinement, it cannot be
used in combination with other corrective or coercive techniques.”
52. The subsequent section of the 2004 CIA Background Paper, entitled
“Interrogation – A Day-to-Day Look” sets out a – considerably redacted –
“prototypical interrogation” practised routinely at the CIA “black site”,
“with an emphasis on the application of interrogation techniques, in
combination and separately”. A detailed description of such “prototypical
interrogation” can be found in Husayn (Abu Zubaydah) v. Poland (cited
above, § 66) and in Al Nashiri v. Poland (cited above, § 68).
53. From the end of January 2003 to September 2006 the rules for CIA
interrogations were set out in the Guidelines on Interrogations Conducted
Pursuant to the Presidential Memorandum of Notification of 17 September
2001 (“the DCI Interrogation Guidelines”), signed by the CIA Director,
George Tenet on 28 January 2003.
The 2014 US Senate Committee Report states that, although the above
guidelines were prepared as a reaction to the death of one of the HVDs, Gul
Rahman, at Detention Site Cobalt and the use of unauthorised interrogation
techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri
v. Poland, cited above, §§ 99-100), they did not reference all interrogation
practices that had been employed at CIA detention sites. For instance, they
did not address whether techniques such as the “rough take down”, the use
of cold water showers and prolonged light deprivation were prohibited.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
According to the 2014 US Senate Committee Report, the CIA officers
had a “significant amount of discretion” in the application of the
interrogation measures. The relevant part of the 2014 US Senate Committee
Report reads:
“[B]y requiring advance approval of ‘standard techniques’ ‘whenever feasible, the
guidelines allowed CIA officers a significant amount of discretion to determine who
could be subjected to the CIA’s ‘standard’ interrogation techniques, when those
techniques could be applied, and when it was not ‘feasible’ to request advance
approval from CIA Headquarters. Thus, consistent with the interrogation guidelines,
throughout much of 2003, CIA officers (including personnel not trained in
interrogation) could, at their discretion, strip a detainee naked, shackle him in the
standing position for up to 72 hours, and douse the detainee repeatedly with cold
water without approval from CIA Headquarters if those officers judged CIA
Headquarters approval was not ‘feasible’. In practice, CIA personnel routinely applied
these types of interrogation techniques without obtaining prior approval.”
4. Conditions of detention at CIA “Black Sites”
54. From the end of January 2003 to September 2006 the conditions of
detention at CIA detention facilities abroad were governed by the
Guidelines on Confinement Conditions for CIA Detainees (“the DCI
Confinement Guidelines”), signed by the CIA Director, George Tenet, on
28 January 2003.
This document, together with the DCI Interrogation Guidelines (see
paragraph 53 above), set out the first formal interrogation and confinement
guidelines for the HVD Programme. The 2014 US Senate Committee
Report relates that, in contrast to earlier proposals of late 2001, when the
CIA expected that any detention facility would have to meet US prison
standards, the guidelines set forth minimal standards and required only that
the facility be sufficient to meet “basic health needs”.
According to the report, that meant that even a facility comparable to the
“Detention Site Cobalt” in which detainees were kept shackled in complete
darkness and isolation, with a bucket for human waste, and without heat
during the winter months, met the standard.
55. According to the guidelines, at least the following “six standard
conditions of confinement” were in use during that period:
(i) blindfolds or hooding designed to disorient the detainee and keep him
from learning his location or the layout of the detention facility;
(ii) removal of hair upon arrival at the detention facility such that the
head and facial hair of each detainee is shaved with an electric shaver, while
the detainee is shackled to a chair;
(iii) incommunicado, solitary confinement;
(iv) continuous noise up to 79dB, played at all times, and maintained in
the range of 56-58 dB in detainees’ cells and 68-72 dB in the walkways;
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
19
(v) continuous light such that each cell was lit by two 17-watt T-8
fluorescent tube light bulbs, which illuminated the cell to about the same
brightness as an office;
(vi) use of leg shackles in all aspects of detainee management and
movement.
56. The Memorandum for John A. Rizzo, Acting General Counsel at the
CIA, entitled “Application of the Detainee Treatment Act to Conditions of
Confinement at Central Intelligence Agency Facilities”, dated 31 August
2006, which was released on 24 August 2009 in a heavily redacted form,
referred to conditions in which High-Value Detainees were held as follows:
“... the CIA detainees are in constantly illuminated cells, substantially cut off from
human contact, and under 24-hour-a-day surveillance. We also recognize that many of
the detainees have been in the program for several years and thus that we cannot
evaluate these conditions as if they have occurred only for a passing moment ... .
Nevertheless, we recognize that the isolation experienced by the CIA detainees may
impose a psychological toll. In some cases, solitary confinement may continue for
years and may alter the detainee’s ability to interact with others. ...”
5. The scale of the HVD Programme
57. According to the 2014 US Senate Committee Report, the CIA held
detainees from 2002 to 2008.
Early 2003 was the most active period of the programme. Of the
119 detainees identified by the Senate Intelligence Committee as held by the
CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees
who, as found by the Committee, were subjected to the EITs, seventeen
were subjected to such methods of interrogation between January 2003 and
August 2003. During that time the EITs were primarily used at the
Detention Site Cobalt and the Detention Site Blue.
58. The report states that by the end of 2004 the overwhelming majority
of CIA detainees – 113 of the 119 identified in the report – had already
entered CIA custody. Most of the detainees remaining in custody were no
longer undergoing active interrogations; rather, they were infrequently
questioned and awaiting a “final disposition”. The CIA took custody of only
six new detainees between 2005 and January 2009: four detainees in 2005,
one in 2006, and one in 2007.
6. Closure of the HVD Programme
59. On 6 September 2006 President Bush delivered a speech announcing
the closure of the HVD Programme. According to information disseminated
publicly by the US authorities, no persons were held by the CIA as of
October 2006 and the detainees concerned were transferred to the custody
of the US military authorities in the US Naval Base in Guantánamo Bay.
60. In January 2009 President Obama signed Executive Order 13491
that prohibited the CIA from holding detainees other than on a “short-term,
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
transitory basis” and limited interrogation techniques to those included in
the Army Field Manual.
B. The United States Supreme Court’s judgment in Rasul v. Bush
61. On 28 June 2004 the Supreme Court gave judgment in
Rasul v. Bush, 542 U.S. 466 (2004). It held that foreign nationals detained
in the Guantánamo Bay detention camp could petition federal courts for
writs of habeas corpus to review the legality of their detention. The relevant
part of the syllabus reads as follows:
“United States courts have jurisdiction to consider challenges to the legality of the
detention of foreign nationals captured abroad in connection with hostilities and
incarcerated at Guantánamo Bay.
“(a) The District Court has jurisdiction to hear petitioners’ habeas challenges under
28 U.S.C. § 2241, which authorizes district courts, within their respective
jurisdictions, to entertain habeas applications by persons claiming to be held “in
custody in violation of the ... laws ... of the United States,” §§ 2241(a), (c)(3).
Such jurisdiction extends to aliens held in a territory over which the United States
exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ...”
C. Role of Jeppesen Dataplan, Richmor Aviation and other air
companies in the CIA rendition operations
62. According to various reports available in the public domain and
material collected during international inquiries concerning the CIA’s HDV
Programme (see paragraphs 269-277 and 281-283 below), the CIA used a
network of at least twenty-six private planes for their rendition operations.
The planes were leased through front companies. The CIA contracts remain
classified but parts of the contracts between front companies (such as, for
example, Richmor Aviation) and their contractors are publicly available.
1. Jeppesen Dataplan Inc.
63. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose,
California. According to the company’s website, it is an international flight
operations service provider that coordinates everything from landing fees to
hotel reservations for commercial and military clients.
64. In the light of reports on rendition flights, a unit of the company
Jeppesen International Trip Planning Service (JITPS) provided logistical
support to the CIA for the renditions of persons suspected of terrorism.
65. In 2007 the American Civil Liberties Union (“ACLU”) filed a
federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three
extraordinary rendition victims, with the District Court for the Northern
District of California. Later, two other persons joined the lawsuit as
plaintiffs. The suit charged that Jeppesen knowingly participated in these
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
21
renditions by providing critical flight planning and logistical support
services to aircraft and crews used by the CIA to forcibly disappear these
five men to torture, detention and interrogation.
In February 2008 the District Court dismissed the case on the basis of
“state secret privilege”. In April 2009 the 9 Circuit Court of Appeals
th
reversed the first-instance decision and remitted the case. In September
2010, on the US Government’s appeal, an 11-judge panel of the 9
th
Circuit
Court of Appeals reversed the decision of April 2009. In May 2011 the US
Supreme Court refused the ACLU’s request to hear the lawsuit.
2. Richmor Aviation
66. Richmor Aviation is an aircraft company based in Hudson, New
York.
67. According to Reprieve, documents detailing Richmor Aviation’s
involvement in CIA rendition missions were made public by it in 2011.
These documents included litigation material concerning a dispute for a
breach of contract between Richmor Aviation and Sportsflight, a contractor
organising flights. They show that Richmor Aviation was involved in the
rendition operations in particular through a Gulfstream jet under their
management, N85VM, which was later redesignated as N227SV (see also
paragraphs 123-125 below). Other planes operated by Richmor Aviation
were also involved in the programme.
Richmor Aviation became a part of this programme as early as June
2002, when the US government’s initial prime contractor DynCorp entered
into a single entity charter contract with broker Capital Aviation to supply
Richmor Aviation’s Gulfstream jet N85VM.
Under that contract, Richmor Aviation was subcontracted to perform
numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu
Omar’s rendition flight from Germany to Egypt on 17 February 2003 was
operated by Richmor Aviation on behalf of DynCorp (see also Nasr
and Ghali v. Italy, no. 44883/09, §§ 39, 112 and 231, 23 February 2016).
It is also reported that the CIA, acting through Computer Sciences
Corporation (“CSC”), arranged for Richmor Aviation jet N982RK to
transfer Mr El-Masri from a CIA “black site” in Afghanistan to Albania (see
El-Masri, cited above, § 46).
3. Other companies
68. An inquiry into the alleged existence of CIA secret prisons in Europe
launched by the European Parliament (“the Fava Inquiry”; see
paragraphs 281-284 below) examined, among other things, the use by the
CIA of private companies and charter services to carry out the rendition
operations. The relevant parts of working document no. 4 produced in the
course of the inquiry read as follows:
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
“Within the context of the extraordinary renditions, the CIA had often used private
companies and charter services for aircraft rentals. Through the civil aviation it is
possible to reach places where the military aircraft would be seen suspiciously.
Thanks to the civil aviation, the CIA avoids the duty to provide the information
required by States concerning government or military flights.
Most of these companies are the so-called shell companies: they only exist on
papers (post offices boxes, for instance) or they have a sole employee (normally a
lawyer). These shell companies appear the owners of some aircrafts which are
systematically object of buy-and-sell operations. After each transaction, planes are
re-registered in order to [lose] their tracks. ...
Sometimes shell companies used by CIA rely on other real companies endowed with
premises and employees (so called: operating companies). These companies are
entrusted to stand behind the shell companies; they provide the CIA aircrafts with all
necessary logistics (pilots, catering, technical assistance). In some cases the operating
companies are directly linked to the CIA. One example is Aero Contractor, a company
described by the New York Times as the ‘major domestic hub of the Central
Intelligence Agency’s secret air service.
The system is well described by the New York Times:
‘An analysis of thousands of flight records, aircraft registrations and corporate
documents, as well as interviews with former C.I.A. officers and pilots, show that the
agency owns at least 26 planes, 10 of them purchased since 2001. The agency has
concealed its ownership behind a web of seven shell corporations that appear to have
no employees and no function apart from owning the aircraft. The planes, regularly
supplemented by private charters, are operated by real companies controlled by or
tied to the agency, including Aero Contractors and two Florida companies, Pegasus
Technologies and Tepper Aviation.’
Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is
the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and
flight management companies. The Gulfstream IV, N85VM belongs to Richmor
Aviation (plane involved in the abduction of Abu Omar).
Ultimately, in this inextricable net, there is also the possibility that single aircrafts
change their registration numbers (as for the Gulfstrean V, from Richmor Aviation,
registered as N379P, then, N8068V and then N44982).
There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but,
according the Federal Aviation Administration records, there would be 57 registration
numbers. It comes out that some of them are registered more than once.
Among the 51 airplanes alleged to be used by CIA:
26 planes are registered to shell companies and sometimes supported by operating
companies.
10 are designed as ‘CIA frequent flyers, they belong to Blackwater USA, an
important CIA and US Army ‘classified contractor’. It provides staff, training and
aviation logistic. In this case there is no intermediation of shell companies.
The other 15 planes are from occasional rental from private companies working with
CIA as well as with other customers.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
23
69. The document listed the following operating companies involved in
the rendition operations: Aero Contractors, Ltd; Tepper Aviation; Richmor
Aviation; and subsidiaries of Blackwater USA.
Aero Contractors was the operating company for the following shell
companies: Steven Express Leasing Inc., Premier Executive Transport
Service, Aviation Specialties Inc. and Devon Holding and Leasing Inc.
D. Review of the CIA’s activities involved in the HVD Programme in
2001-2009 by the US Senate
1. Course of the review
70. In March 2009 the US Senate Intelligence Committee initiated a
review of the CIA’s activities involved in the HVD Programme, in
particular the secret detention at foreign “black sites” and the use of the
EITs.
That review originated in an investigation that had begun in 2007 and
concerned the CIA’s destruction of videotapes documenting interrogations
of Abu Zubaydah and Al Nashiri at Detention Site Green (see also
paragraphs 24 above and 94-96 and 166 below).. The destruction was
carried out in November 2005.
71. The Committee’s “Study of the Central Intelligence Agency’s
Detention and Interrogation” was finished towards the end of 2012. The
document describes the CIA’s HVD Programme between September 2001
and January 2009. It examined operations at overseas CIA clandestine
detention facilities, the use of the EITs and conditions of 119 known
individuals detained by CIA during that period (see also paragraphs 22-24
above).
The US Senate Committee on Intelligence, together with their staff,
reviewed thousands of CIA cables describing the interrogations of Abu
Zubaydah, Al Nashiri and other CIA prisoners, and more that than six
million pages of CIA material, including operational cables, intelligence
reports, internal memoranda and emails, briefing materials, interview
transcripts, contracts and other records.
72. On 3 April 2014 the Intelligence Committee decided to declassify
the report’s executive summary and twenty findings and conclusions. In this
connection, Senator Dianne Feinstein issued a statement which read, in so
far as relevant, as follows:
“The Senate Intelligence Committee this afternoon voted to declassify the 480-page
executive summary as well as 20 findings and conclusions of the majority’s five-year
study of the CIA Detention and Interrogation Program, which involved more than
100 detainees.
The purpose of this review was to uncover the facts behind this secret program, and
the results were shocking. The report exposes brutality that stands in stark contrast to
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
our values as a nation. It chronicles a stain on our history that must never again be
allowed to happen. ...
The report also points to major problems with CIA’s management of this program
and its interactions with the White House, other parts of the executive branch and
Congress. This is also deeply troubling and shows why oversight of intelligence
agencies in a democratic nation is so important. ...
The full 6,200-page full report has been updated and will be held for declassification
at a later time.”
The executive summary with findings and conclusions was released on
9 December 2014 (see also paragraph 22 above).
73. The passages of the 2014 US Senate Committee Report relating to
Mr Abu Zubaydah’s secret detention relevant for the present case are
rendered below (see paragraphs 76, 80-81 and 92-96 below).
2. Findings and conclusions
74. The Committee made twenty findings and conclusions. They can be
summarised, in so far as relevant, as follows.
75. Conclusion 2 states that “the CIA’s justification for the use of its
enhanced interrogation techniques rested on inaccurate claims of their
effectiveness”.
76. Conclusion 3 states that “[t]he interrogations of the CIA were brutal
and far worse than the CIA represented to policymakers and others”. In that
regard several references are made to Mr Abu Zubaydah’s treatment and
interrogations:
“Beginning with the CIA’s first detainee, Abu Zubaydah, and continuing with
numerous others, the CIA applied its enhanced interrogation techniques with
significant repetition for days or weeks at a time. Interrogation techniques such as
slaps and ‘wallings’ (slamming detainees against a wall) were used in combination,
frequently concurrent with sleep deprivation and nudity. Records do not support CIA
representations that the CIA initially used an ‘an open, nonthreatening approach’, or
that interrogations began with the ‘least coercive technique possible’ and escalated to
more coercive techniques only as necessary.
The waterboarding technique was physically harmful, inducing convulsions and
vomiting. Abu Zubaydah, for example, became ‘completely unresponsive, with
bubbles rising through his open, full mouth’. Internal CIA records describe the
waterboarding of Khaled Shaykh Mohammad as evolving into a ‘series of near
drownings’.
Sleep deprivation involved keeping detainees awake for up to 180 hours, usually
standing or in stress positions, at times with their hands shackled above their heads. At
least five detainees experienced disturbing hallucinations during prolonged sleep
deprivation and, in at least two of those cases, the CIA nonetheless continued the
sleep deprivation.
Contrary to CIA representations to the Department of Justice, the CIA instructed
personnel that the interrogation of Abu Zubaydah would take ‘precedence’ over his
medical care, resulting in the deterioration of a bullet wound Abu Zubaydah incurred
during his capture. ...”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
25
77. Conclusion 4 states that “the conditions of confinement for CIA
detainees were harsher than the CIA had represented to the policymakers
and others” and that “conditions at CIA detention sites were poor, and were
especially bleak early in the programme”. As regards conditions at later
stages, the following findings were made:
“Even after the conditions of confinement improved with the construction of new
detention facilities, detainees were held in total isolation except when being
interrogated or debriefed by CIA personnel.
Throughout the program, multiple CIA detainees who were subjected to the CIA’s
enhanced interrogation techniques and extended isolation exhibited psychological and
behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-
harm and self-mutilation.
Multiple psychologists identified the lack of human contact experienced by
detainees as a cause of psychiatric problems.”
78. Conclusion 8 states that “the CIA operation and management of the
program complicated, and in some cases impeded, the national security
missions of other Executive Branch Agencies”, including the Federal
Bureau of Investigation (“the FBI”), the State Department and the Office of
the Director of National Intelligence (“the ODNI”). In particular, the CIA
withheld or restricted information relevant to these agencies’ missions and
responsibilities, denied access to detainees, and provided inaccurate
information on the HVD Programme to them.
79. The findings under Conclusion 8 also state that, while the US
authorities’ access to information about “black sites” was restricted or
blocked, the local authorities in countries hosting CIA secret detention
facilities were generally informed of their existence. In that respect, it is
stated:
“The CIA blocked State Department leadership from access to information crucial
to foreign policy decision-making and diplomatic activities. The CIA did not inform
two secretaries of state of locations of CIA detention facilities, despite the significant
foreign policy implications related to the hosting of clandestine CIA detention sites
and the fact that the political leaders of host countries were generally informed of their
existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA
program with State Department officials, preventing the ambassadors from seeking
guidance on the policy implications of establishing CIA detention facilities in the
countries in which they served.
In two countries, U.S. ambassadors were informed of plans to establish a CIA
detention site in the countries where they were serving after the CIA had already
entered into agreements with the countries to host the detention sites. In two other
countries where negotiations on hosting new CIA detention facilities were taking
place, the CIA told local government officials not to inform the U.S. ambassadors.”
80. Conclusion 11 states that “the CIA was unprepared as it began
operating its Detention and Interrogation Program more than six months
after being granted detention authorities”. In that regard, references are
made to the applicant, stating that “the CIA was not prepared to take
26
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
custody of its first detainee”, Abu Zubaydah, and lacked a plan for the
eventual disposition of its detainees. After taking custody of Abu Zubaydah,
CIA officers concluded that he “should remain incommunicado for the
remainder of his life”, which “may preclude [his] being turned over to
another country”.
Also, as interrogations started, the CIA deployed persons who lacked
relevant training and experience.
81. According to Conclusion 13, “two contract psychologists devised the
CIA enhanced interrogation techniques and played a central role in the
operation, assessment and management of the [programme]”. It was
confirmed that “neither psychologist had any experience as an interrogator.
Nor did either have specialised knowledge of Al-Qa’ida, a background in
counter-terrorism, or any relevant or cultural or linguistic expertise”.
The contract psychologists developed theories of interrogation based on
“learned helplessness” and developed the list of EITs approved for use
against Abu Zubaydah and other detainees.
82. Conclusion 14 states that “CIA detainees were subjected to coercive
interrogation techniques that had not been approved by the Department of
Justice or had not been authorised by the CIA Headquarters”.
It was confirmed that prior to mid-2004 the CIA routinely subjected
detainees to nudity and dietary manipulation. The CIA also used abdominal
slaps and cold water dousing on several detainees during that period. None
of these techniques had been approved by the Department of Justice. At
least seventeen detainees were subjected to the EITs without authorisation
from CIA Headquarters.
83. Conclusion 15 states that “the CIA did not conduct a comprehensive
or accurate accounting of the number of individuals it detained, and held
individuals who did not meet the legal standard for detention”. It was
established that the CIA had never conducted a comprehensive audit or
developed a complete and accurate list of the persons it had detained or
subjected to the EITs. The CIA statements to the Committee and later to the
public that the CIA detained fewer than 100 individuals, and that less than a
third of those 100 detainees were subjected to the CIA’s EITs, were
inaccurate. The Committee’s review of CIA records determined that the
CIA detained at least 119 individuals, of whom at least thirty-nine were
subjected to the CIA’s enhanced interrogation techniques. Of the
119 known detainees, at least twenty-six were wrongfully held and did not
meet the detention standard in the MON (see paragraph 26 above).
84. Conclusion 19 states that “the CIA’s Detention and Interrogation
Program was inherently unsustainable and had effectively ended by 2006
due to unauthorized press disclosures, reduced cooperation from other
nations, and legal and oversight concerns”.
85. It was established that the CIA required secrecy and cooperation
from other nations in order to operate clandestine detention facilities.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
27
According to the 2014 US Senate Committee Report, both had eroded
significantly before President Bush publicly disclosed the programme on
6 September 2006 (see also paragraph 59 above). From the beginning of the
programme, the CIA faced significant challenges in finding nations willing
to host CIA clandestine detention sites. These challenges became
increasingly difficult over time. With the exception of one country (whose
name was redacted) the CIA was forced to relocate detainees out of every
country in which it established a detention facility because of pressure from
the host government or public revelations about the program.
Moreover, lack of access to adequate medical care for detainees in
countries hosting the CIA’s detention facilities caused recurring problems.
The refusal of one host country to admit a severely ill detainee into a local
hospital due to security concerns contributed to the closing of the CIA’s
detention facility in that country.
86. In early 2004, the anticipation of the US Supreme Court’s decision
to grant certiorari in the case of Rasul v. Bush (see also paragraph 61 above)
prompted the CIA to move detainees out of a CIA detention facility at
Guantánamo Bay, Cuba.
In mid-2004 the CIA temporarily suspended the use of the EITs after the
CIA Inspector General recommended that the CIA seek an updated legal
opinion from the Office of Legal Counsel.
In late 2005 and in 2006, the Detainee Treatment Act and then the US
Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006))
caused the CIA to again temporarily suspend the use of the EITs. In
Hamdan v. Rumsfeld the US Supreme Court ruled that the Guantánamo
military commission set up to try terrorist-suspects captured during the “war
on terror” “lack[ed] the power to proceed because its structure and
procedures violate[d] both the UCMJ [Uniform Code of military Justice]
and the four Geneva Conventions signed in 1949” (for further details see
Husayn (Abu Zubaydah) v. Poland, cited above, §§ 73-75).
87. According to the report, by 2006, press disclosures, the
unwillingness of other countries to host existing or new detention sites, and
legal and oversight concerns had largely ended the CIA’s ability to operate
clandestine detention facilities.
By March 2006 the program was operating in only one country. The CIA
last used its EITs on 8 November 2007. The CIA did not hold any detainees
after April 2008.
88. Finally, Conclusion 20 states that “the CIA’s Detention and
Interrogation Program damaged the United States’ standing in the world,
and resulted in other significant monetary and non-monetary costs”.
It was confirmed that, as the CIA records indicated, the HVD Programme
costed well over USD 300 million in non-personnel costs. This included
funding for the CIA to construct and maintain detention facilities, including
28
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
two facilities costing nearly [number redacted] million that were never used,
in part due to the host country’s political concerns.
89. According to the 2014 US Senate Committee Report:
“to encourage governments to clandestinely host CIA detention sites, or to increase
support for existing sites, the CIA provided millions of dollars in cash payments to
foreign government officials. The CIA Headquarters encouraged CIA Stations to
construct ‘wish lists’ of proposed financial assistance to [phrase REDACTED]
[entities of foreign governments] and to ‘think big’ in terms of that assistance”.
IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE
A. Restrictions on information about the applicant’s secret detention
and his communication with the outside world
90. In the application and further written pleadings, the applicant’s
lawyers stressed that restrictions on information regarding the entirety of
Abu Zubaydah’s detention necessarily meant that the case presented a range
of complex, unusual and at times unique characteristics that the Court
should be aware of in its consideration. In their view, several factors
heightened the already significant challenges related to uncovering and
presenting evidence in the case.
First, the clandestine nature of the rendition operations coupled with a
concerted cover-up intended to withhold or destroy any evidence relating to
the rendition programme inherently limited the applicant’s ability to
produce evidence in his case.
Second, the lack of any meaningful investigation by the Lithuanian
authorities, in whose hands much of the necessary information rested,
impeded access to evidence and information.
Third, they referred to what they called “the unprecedented restrictions
on communication” between Mr Abu Zubaydah, his counsel and the Court,
which “precluded the presentation of information or evidence directly from
or in relation to the client”. Only the applicant’s US counsel with top-secret
security clearance could meet with the applicant and all information
obtained from him was presumptively classified. In consequence, counsel
could not disclose to other members of the legal team or to the Court any
information obtained from the applicant or other classified sources without
obtaining the declassification of that information by the US authorities.
According to the applicant’s lawyers, “Abu Zubaydah [was] a man
deprived of his voice, barred from communicating with the outside world or
with this Court and from presenting evidence in support of his case”. For
that reason, his story was therefore to be told and the case was presented on
his behalf by reference principally to publicly available documentation (see
also Husayn (Abu Zubaydah) v. Poland, cited above, § 80).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
29
B. The applicant’s capture, transfer to CIA custody, secret detention
and transfers from 27 March 2002 to 22 September 2003, as
established by the Court in Husayn (Abu Zubaydah) v. Poland and
supplemented by the 2014 US Senate Committee Report
91. As regards the events preceding the applicant’s secret detention in
Poland, i.e. his capture in Faisalabad, Pakistan on 27 March 2002 and his
initial detention from that date to 4 December 2002, in Husayn (Abu
Zubaydah) v. Poland the Court held as follows:
“404. In the light of the above first-hand CIA documentary evidence and clear and
convincing expert evidence, the Court finds established beyond reasonable doubt that
the applicant, following his capture on 27 March 2002, was detained in the CIA
detention facility in Bangkok from an unknown date following his capture to
4 December 2002, that Mr Al Nashiri was also held in the same facility from
15 November 2002 to 4 December 2002 and that they were both moved together to
‘another CIA black site’ on 4 December 2002 (see also Al Nashiri, cited above,
§ 404).”
The experts, Senator Marty and Mr J.G.S., heard by the Court at the
fact-finding hearing in Husayn (Abu Zubaydah) v. Poland and Al Nashiri
v. Poland identified the detention facility in Bangkok, Thailand as the one
referred to in CIA declassified documents under the codename “Cat’s Eye”
or “Catseye” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 403;
and Al Nashiri v. Poland, cited above, § 403). In the 2014 US Senate
Committee Report that facility is referred to as “Detention Site Green”.
92. The 2014 US Senate Committee Report relates the events
concerning the applicant’s capture and initial detention as follows:
“In late March 2002, Pakistani government authorities, working with the CIA,
captured Qa’ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah
suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in
ALEC Station, the office within the CIA with specific responsibility for al-Qa’ida, to
possess detailed knowledge of al-Qa’ida terrorist attack plans. However, as is
described in greater detail in the full Committee Study, this assessment significantly
overstated Abu Zubaydah’s role in al-Qa’ida and the information he was likely to
possess.
...
In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA
began considering options for his transfer to CIA custody and detention under the
MON. The CIA rejected U.S. military custody [REDACTED] in large part because of
the lack of security and the fact that Abu Zubaydah would have to be declared to the
International Committee of the Red Cross (ICRC). The CIA’s concerns about custody
at Guantánamo Bay, Cuba, included the general lack of secrecy and the ‘possible loss
of control to US military and/or FBI’. ...
Over the course of four days, the CIA settled on a detention site in Country
[REDACTED] because of that country’s [REDACTED] and the lack of U.S. court
jurisdiction. The only disadvantages identified by the CIA with detention in Country
[REDACTED] were that it would not be a ‘USG-controlled facility’ and that
30
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
‘diplomatic/policy decisions’ would be required. As a[t] March 28, 2002, CIA
document acknowledged, the proposal to render Abu Zubaydah to Country [name
REDACTED] had not yet been broached with that country’s officials. ...
The decision to detain Abu Zubaydah at a covert detention facility in Country
[REDACTED] did not involve the input of the National Security Council Principals
Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station
in Country. On March 29, 2002, an email from the Office of the Deputy DCI stated
that ‘[w]e will have to acknowledge certain gaps in our planning/preparations, but this
is the option the DDCI will lead with for POTUS consideration’. That morning, the
president approved moving forward with the plan to transfer Abu Zubaydah to
Country [REDACTED]. During the same Presidential Daily Brief (PDB) session,
Secretary of Defense Rumsfeld suggested exploring the option of putting Abu
Zubaydah on a ship; however, CIA records do not indicate any further input from the
principals. That day, the CIA Station in Country obtained the approval of Country’s
[REDACTED] officials for the CIA detention site. ... Shortly thereafter, Abu
Zubaydah was rendered from Pakistan to Country [REDACTED] where he was held
at the first CIA detention site, referred to in this summary as ‘DETENTION SITE
GREEN’.”
93. The report cited a CIA cable dated April 2002 relating the
applicant’s physical conditions of detention as follows:
“[REDACTED] a cable described Abu Zubaydah’s cell as white with no natural
lighting or windows, but with four halogen lights pointed into the cell. An air
conditioner was also in the room. A white curtain separated the interrogation room
from the cell. The interrogation cell had three padlocks. Abu Zubaydah was also
provided with one of two chairs that were rotated based on his level of cooperation
(one described as more comfortable than the other). Security officers wore all black
uniforms, including boots, gloves, balaclavas, and goggles to keep Abu Zubaydah
from identifying the officers, as well as to prevent Abu Zubaydah ‘from seeing the
security guards as individuals who he may attempt to establish a relationship or
dialogue with’. The security officers communicated by hand signals when they were
with Abu Zubaydah and used hand-cuffs and leg shackles to maintain control. In
addition, either loud rock music was played or noise generators were used to enhance
Abu Zubaydah’s ‘sense of hopelessness’. Abu Zubaydah was typically kept naked and
sleep deprived.”
94. The report states that on 3 August 2002 the CIA Headquarters
informed the interrogation team at Detention Site Green that it had formal
approval to apply the EITs, including waterboarding, against Abu
Zubaydah. After Abu Zubaydah had been held in complete isolation for
forty-seven days, the most aggressive interrogation phase began “at
approximately 11:50 a.m. on August 4, 2002”. The report gives the
following description of that particular interrogation session:
“Security personnel entered the cell, shackled and hooded Abu Zubaydah, and
removed his towel (Abu Zubaydah was then naked). Without asking any questions,
the interrogators placed a rolled towel around his neck as a collar, and backed him up
into the cell wall (an interrogator later acknowledged the collar was used to slam Abu
Zubaydah against a concrete wall). The interrogators then removed the hood,
performed an attention grab, and had Abu Zubaydah watch while a large confinement
box was brought into the cell and laid on the floor. A cable states Abu Zubaydah ‘was
unhooded and the large confinement box was carried into the interrogation room and
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
31
paced [sic] on the floor so as to appear as a coffin’. The interrogators then demanded
detailed and verifiable information on terrorist operations planned against the United
States, including the names, phone numbers, email addresses, weapon caches, and
safe houses of anyone involved. CIA records describe Abu Zubaydah as appearing
apprehensive. Each time Abu Zubaydah denied having additional information, the
interrogators would perform a facial slap or face grab. At approximately 6:20 PM,
Abu Zubaydah was waterboarded for the first time. Over a two-and-a half-hour
period, Abu Zubaydah coughed, vomited, and had ‘involuntary spasms of the torso
and extremities’ during waterboarding. Detention site personnel noted that
‘throughout the process [Abu Zubaydah] was asked and given the opportunity to
respond to questions about threats’ to the United States, but Abu Zubaydah continued
to maintain that he did not have any additional information to provide.”
95. From 4 August to 23 August 2002 the CIA interrogators subjected
Abu Zubaydah to EITs on a near 24-hour-per-day basis. The report relates
the following facts:
“The use of the CIA’s enhanced interrogation techniques – including ‘walling,
attention grasps, slapping, facial hold, stress positions, cramped confinement, white
noise and sleep deprivation’ – continued in ‘varying combinations, 24 hours a day’ for
17 straight days, through August 20, 2002. When Abu Zubaydah was left alone during
this period, he was placed in a stress position, left on the waterboard with a cloth over
his face, or locked in one of two confinement boxes. According to the cables, Abu
Zubaydah was also subjected to the waterboard ‘2-4 times a day ... with multiple
iterations of the watering cycle during each application’.
The ‘aggressive phase of interrogation’ continued until August 23, 2002. Over the
course of the entire 20 day ‘aggressive phase of interrogation’, Abu Zubaydah spent a
total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and
29 hours in a small confinement box, which had a width of 21 inches, a depth of
2.5 feet, and a height of 2.5 feet. The CIA interrogators told Abu Zubaydah that the
only way he would leave the facility was in the coffin-shaped confinement box.
According to the daily cables from DETENTION SITE GREEN, Abu Zubaydah
frequently ‘cried’, ‘begged’, ‘pleaded’, and ‘whimpered’, but continued to deny that
he had any additional information on current threats to, or operatives in, the United
States.
By August 9, 2002, the sixth day of the interrogation period, the interrogation team
informed CIA Headquarters that they had come to the ‘collective preliminary
assessment’ that it was unlikely Abu Zubaydah ‘had actionable new information about
current threats to the United States’. On August 10, 2002, the interrogation team
stated that it was ‘highly unlikely’ that Abu Zubaydah possessed the information they
were seeking. ...
[REDACTED] DETENTION SITE GREEN cables describe Abu Zubaydah as
‘compliant’, informing CIA Headquarters that when the interrogator ‘raised his
eyebrow, without instructions’, Abu Zubaydah ‘slowly walked on his own to the
water table and sat down’. When the interrogator ‘snapped his fingers twice’, Abu
Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the
detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they
continued to believe that Abu Zubaydah was withholding threat information and
instructed the CIA interrogators to continue using the CIA’s enhanced interrogation
techniques.
32
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
[REDACTED] At times Abu Zubaydah was described as ‘hysterical’ and ‘distressed
to the level that he was unable to effectively communicate’. Waterboarding sessions
‘resulted in immediate fluid intake and involuntary leg, chest and arm spasms’ and
‘hysterical pleas’. In at least one waterboarding session, Abu Zubaydah ‘became
completely unresponsive, with bubbles rising through his open, full mouth’.
According to CIA records, Abu Zubaydah remained unresponsive until medical
intervention, when he regained consciousness and expelled ‘copious amounts of
liquid’.”
According to the report, “CIA records indicate that Abu Zubaydah never
provided the information for which the CIA’s enhanced interrogation
techniques were justified and approved”. Furthermore, “as compared to the
period prior to August 2002, the quantity and type of intelligence produced
by Abu Zubaydah remained largely unchanged during and after the August
2002 use of the CIA enhanced interrogation techniques”.
96. The report also confirms that Abu Zubaydah and Al Nashiri were
held at Detention Site Green until its closure in December 2002 and that
they were then moved together to another CIA detention facility, Detention
Site Blue. The relevant part of the report reads as follows:
“In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and
Abu Zubaydah were rendered to DETENTION SITE BLUE.”
97. As regards the events after 4 December 2002, in Husayn (Abu
Zubaydah) v. Poland (§ 419) the Court held:
“419. Assessing all the above facts and evidence as a whole, the Court finds it
established beyond reasonable doubt that:
(1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in
Szymany on board the CIA rendition aircraft N63MU;
(2) from 5 December 2002 to 22 September 2003 the applicant was detained in the
CIA detention facility in Poland identified as having the codename ‘Quartz’ and
located in Stare Kiejkuty;
(3) during his detention in Poland under the HVD Programme he was ‘debriefed’
by the CIA interrogation team and subjected to the standard procedures and treatment
routinely applied to High-Value Detainees in the CIA custody, as defined in the
relevant CIA documents;
(4) on 22 September 2003 the applicant was transferred by the CIA from Poland to
another CIA secret detention facility elsewhere on board the rendition aircraft
N313P.”
98. The events that took place between 5 December 2002 and
22 September 2003 at the CIA detention facility code-named “Quartz” and
located in Poland correspond to the events that the 2014 US Senate
Committee Report relates as occurring at “Detention Site Blue” (see
paragraphs 24 above and 166 below; see also Al Nashiri v. Romania, cited
above, § 101).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
33
C. The applicant’s transfers and detention between his rendition
from Poland on 22 September 2003 and his alleged rendition to
Lithuania on 17 February or 18 February 2005 as established by
the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on
the basis of the 2014 US Senate Committee Report and other
documents and as corroborated by experts heard by the Court
99. The applicant submitted that on 22 September 2003 he had been
transferred from Poland to a CIA detention facility at Guantánamo Bay. In
Spring 2004, in anticipation of the US Supreme Court’s ruling in
Rasul v. Bush granting Guantánamo detainees the right to legal counsel and
habeas corpus review of their detention in a US federal court (see also
paragraph 61 above), he had again been secretly transferred, this time to a
facility in Morocco, where he had been detained incommunicado for almost
a year.
100. In that regard, he relied on a July 2011 report by the Associated
Press stating that “according to two former US intelligence officials”
Abu Zubaydah had been held in “a secret prison in Lithuania”. Another
press report indicated that his detention in Lithuania had followed his
detention in Morocco.
101. On the basis of their investigations, research and various material in
the public domain, the experts heard by the Court at the fact-finding hearing
reconstructed the chronology of the applicant’s transfers and identified the
countries of his secret detention in the period from 22 September 2003 to
17-18 February 2005.
102. In the light of the material in the Court’s possession the chronology
of the applicant’s detention can be described as follows.
103. In Husayn (Abu Zubaydah) the Court, in its findings as to the
applicant’s transfer out of Poland considered, among other things, the
collation of data from multiple sources, including flight plan messages
concerning the N313P flight circuit executed through Poland on
22 September 2003 (see Husayn (Abu Zubaydah) v. Poland, cited above,
§ 109). Those data showed that N313P had travelled the following routes:
Take-off
Destination
Date of flight
Washington, DC (KIAD)
Prague, Czech Republic (LKPR) 21 Sept 2003
Prague, Czech Republic (LKPR) Tashkent, Uzbekistan (UTTT)
22 Sept 2003
21 Sept 2003
22 Sept 2003
22 Sept 2003
23 Sept 2003
Tashkent, Uzbekistan (UTTT)
Kabul, Afghanistan (OAKB)
Szymany, Poland (EPSY)
Constanţa, Romania (LRCK)
Rabat, Morocco (GMME)
Kabul, Afghanistan (OAKB)
Szymany, Poland (EPSY)
Constanţa, Romania (LRCK)
Rabat, Morocco (GMME)
Guantánamo Bay, Cuba (MUGM) 24 Sept 2003
34
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
104. Mr J.G.S., at the fact-finding hearing in the above case testified as
follows (ibid. § 312):
“One flight circuit however is of particular significance and this is the final part of
our presentation in which we would like to discuss how the detention operations in
Poland were brought to an end.
In September 2003 the CIA rendition and detention programme underwent another
overhaul analogous to the one which had taken place in December 2002 when
Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this
occasion, the CIA executed a rendition circuit which entailed visiting no fewer than
five secret detention sites at which CIA detainees were held. These included, in
sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and
Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially
commenced in Kabul, Afghanistan. On this particular flight route, it has been found
that all of the detainees who remained in Poland at that date were transferred out of
Poland and deposited into the successive detention facilities at the onward
destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the
applicants today, Mr Zubaydah, who was taken on that date from Poland to
Guantánamo Bay.
This particular flight circuit was again disguised by dummy flight planning although
significantly not in respect of Poland. It was the sole official declaration of Szymany
as a destination in the course of all the CIA’s flights into Poland. The reason therefor
being that no detainee was being dropped off in Szymany on the night of
22 September and the methodology of disguising flight planning pertained primarily
to those renditions which dropped a detainee off at the destination. Since this visit to
Szymany was comprised solely of a pick-up of the remaining detainees, the CIA
declared Szymany as a destination, openly, and instead disguised its onward
destinations of Bucharest and Rabat, hence demonstrating that the methodology of
disguised flight planning continued for the second European site in Bucharest,
Romania and indeed for other detention sites situated elsewhere in the world.”
105. At the fact-finding hearing in the present case, in the course of the
PowerPoint presentation, Mr J.G.S. testified as follows:
“Abu Zubaydah was the first high value detainee, he was arrested in late March
2002 in an operation in Faisalabad, Pakistan and was initially held in Thailand. We
have established before this Court the mode of his transfer to Europe. First to Poland
on 5 December 2002 and he was detained in that site for 292 days. ... We know that
when he departed Poland on 22 September 2003 upon the closure of the site, that he
did not go to Romania directly, he was rather held in both Guantánamo Bay, at the
CIA facility there, and in Rabat – Morocco, for a period of over one year after his
departure from Poland. Unlike Mr Nashiri whom we refer to in earlier proceedings
[Al Nashiri v. Romania], when Zubaydah left Guantánamo he was taken back to the
same site in Morocco at which he had previously been detained, Rabat – Morocco, the
site which had been the subject of some acrimonious relations between the CIA and
its Moroccan counterparts.
It was in this site that Mr Zubaydah found himself in early 2005, specifically
February 2005, when the aforementioned clear-out of Morocco took place and, as I
stated, and connected with specific flight paths, the destination of his transfer out of
Morocco was Lithuania.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
35
106. Mr J.G.S. further explained that the applicant was transferred from
Guantánamo to Rabat on board rendition plane N85VM on 27 March 2004
and provided details of the flight circuit executed by that plane.
In Mr J.G.S.’ description, “the CIA facility at Guantánamo was cleared
in March-April 2004 as the CIA sought to evade justice”; in this respect he
referred to the passage in the 2014 US Senate Report speaking of moving
the CIA detainees from Guantánamo in anticipation of the US Supreme
Court’s ruling in Rasul v. Bush (see also paragraph 61 above and
paragraph 110 below).
107. The N85VM flight on 27 March 2004 was the first part of the CIA
double rendition circuit performed by that plane between 27 March and
13 April 2004. On the first circuit some prisoners, including the applicant,
were transferred from Guantánamo to Rabat directly. The plane then
returned to Washington on 29 March 2004. The second part of the circuit
took place between 12 and 13 April 2004 and N85VM brought the
remaining prisoners from Guantánamo via Tenerife, Spain to the CIA secret
prison in Bucharest, Romania, returning to Washington via Rabat on
13 April 2004 (see also Al Nashiri v. Romania, no. 33234/12, §§ 119-120,
31 May 2018).
108. Mr Black, at the fact-finding hearing, testified as follows:
“We know that Abu Zubaydah was in Poland and that he was transferred out of
Poland in September 2003. The transfer that took him out of Poland in September
2003 had two possible destinations, one of which was Romania and one of which was
Guantánamo Bay. Prima facie it is possible that he could have gone to either. In 2011
I received an off-the-record briefing and my take-away from this briefing, which I
believe to be accurate, was that in the Summer of 2005 or before that Abu Zubaydah
had not been held in Romania. It follows from this that Abu Zubaydah must therefore
have been taken to Guantánamo on that flight in September 2003. We know that
everyone who was taken there had to be moved out in March or April 2004. They
were taken to Morocco. We also know that after a certain time in Morocco, the CIA
had too many disagreements with the Moroccan Intelligence Agencies with regard to
the treatment of prisoners in Morocco. This is dealt with at some length in the Senate
Report. And so everyone who was in Morocco was moved out at the latest in February
2005.”
109. The 2014 US Senate Committee Report’s section entitled “Country
[name REDACTED] Detains Individuals on the CIA’s Behalf” reads, in so
far as relevant, as follows:
“Consideration of a detention facility in Country [REDACTED] began in [month
REDACTED] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the
custody of a foreign government to CIA custody [REDACTED] which had not yet
informed the country’ political leadership of the CIA’s request to establish a
clandestine detention facility in Country [REDACTED], surveyed potential sites for
the facility, while the CIA set aside [USD] [number REDACTED] million for its
construction.
In 2003, the CIA arranged for a ‘temporary patch’ involving placing two CIA
detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already
36
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
existing Country [REDACTED] detention facility, until the CIA’s own facility could
be built.
...
By [day/month REDACTED] 2003, after an extension of five months beyond the
originally agreed upon timeframe for concluding CIA detention activities in Country
[REDACTED], both bin al-Shibh and al-Nashiri had been transferred out of Country
[REDACTED] to the CIA detention facility at Guantánamo Bay, Cuba.”
110. The report, in the section entitled “US Supreme Court Action in the
case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo
to Bay to Country [name REDACTED]” (see also paragraph 61
above),states:
“Beginning in September 2003, the CIA held a number of detainees at CIA facilities
on the grounds of, but separate from, the U.S. military detention facilities at
Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice
began discussing the possibility that a pending U.S. Supreme Court case
Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being
held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions,
CIA officers approached the [REDACTED] in Country [REDACTED] to determine if
it would again be willing to host these CIA detainees, who would remain in CIA
custody within an already existing Country [REDACTED] facility. By January [day
REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this
arrangement for a limited period of time.
Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the
National Security Council, and the White House Counsel for advice on whether the
five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay
or be moved pending the Supreme Court’s decision. After consultation with the U.S.
solicitor general in February 2004, the Department of Justice recommended that the
CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending
the Supreme Court’s resolution of the case. The Department of Justice concluded that
a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had
originally been detained under military authority and had been declared to the ICRC.
Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees
were transferred from Guantánamo Bay to other CIA detention facilities.
[REDACTED] Shortly after placing CIA detainees within already existing Country
[REDACTED] facility for a second time, tensions arose between the CIA and
[REDACTED] Country [REDACTED]. In [month REDACTED] 2004, CIA detainees
in a Country [REDACTED] facility claimed to hear cries of pain from other detainees
presumed to be in the [REDACTED] facility. When the CIA chief of Station
approached the [REDACTED] about the accounts of the CIA detainees, the
[REDACTED] stated with ‘bitter dismay’ that the bilateral relationship was being
‘tested’. There were also counterintelligence concerns relating to CIA detainee Ramzi
bin al-Shibh, who had attempted to influence a Country [REDACTED] officer. These
concerns contributed to a request from [REDACTED] in [month REDACTED] 2004
for the CIA to remove all CIA detainees from Country [REDACTED].
[REDACTED] In [month REDACTED] 2004 the chief of Station in Country
[REDACTED] again approached the [REDACTED] with allegations from CIA
detainees about the mistreatment of Country [REDACTED] detainees [REDACTED]
in the facility, the chief of Station received an angry response that, as he reported to
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
37
CIA Headquarters, ‘starkly illustrated the inherent challenges [of] [REDACTED]’.
According to the chief of Station, Country [REDACTED] saw the CIA as ‘querulous
and unappreciative recipients of their [REDACTED] cooperation’. By the end of
2004, relations between the CIA and Country [REDACTED] deteriorated, particularly
with regard to intelligence cooperation. The CIA detainees were transferred out of
Country [REDACTED] in [name of month REDACTED; appears to have comprised
eight characters] 2005.”
D. The applicant’s alleged secret detention at a CIA “Black Site” in
Lithuania from 17 February or 18 February 2005 to 25 March
2006 as described by the applicant, reconstructed on the basis of
the 2014 US Senate Committee Report and other documents and
as corroborated by experts heard by the Court
1. The applicant’s alleged rendition to Lithuania on 17 February or
18 February 2005 and his rendition from Lithuania on the plane
N733MA on 25 March 2006
(a) The applicant’s submissions
(i) Rendition to Lithuania (17 or 18 February 2005)
111. In his initial submissions of 14 July 2011 and 27 October 2011 the
applicant maintained that the existence of a CIA secret prison in Lithuania
had first been disclosed in August 2009, when ABC News had reported that
according to “former CIA officials directly involved or briefed” on the CIA
HVD Programme, the Lithuanian authorities had provided the CIA with a
building on the outskirts of Vilnius where terrorist suspects had been held
for “more than a year” (see also paragraph 257 below).
112. He further submitted that after his rendition from Poland to
Guantánamo on 22 September 2003 and from Guantánamo to Rabat in
Spring 2004, he had been transferred from Rabat to Lithuania “in early
2005”. Relying on flight information supplied by the Lithuanian Civil
Aviation Administration (Civilinės Aviacijos Administracija – “CAA”),
Reprieve and Interights, he indicated two possible dates – 17 February 2005
and 18 February 2005 – and two CIA rendition aircraft – N724CL
and N787WH – on which he could have been transferred to Lithuania.
113. On 10 September 2012 the applicant filed with the Court’s Registry
a pleading entitled “Additional Submission” in which he rectified and
supplemented information of his alleged rendition to and from Lithuania in
the light of newly emerging materials in the public domain.
114. As regards the alleged rendition to Lithuania on 17 February 2005
or 18 February 2005, the information produced by the applicant could be
summarised as follows:
(a) Between 15-19 February 2005, N787WH and N724CL, arranged by
CSC, travelled from the USA to Lithuania via Morocco and back to the
38
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
USA. No other flights of CIA-related aircraft have so far come to light
connecting the three countries during or around this period;
(b) Data from the Federal Aviation Authority and EuroControl showed
that N787WH, a Boeing 737 operated by Victory Aviation Florida,
executed the following flight circuit on 15-19 February 2005:
Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Salzburg (LOWS) -
Malaga (LEMG) - Rabat (GMME) - Constanţa /Bucharest (LRCK / LRBS) -
Palanga (EYPA) - Copenhagen (EKCH) - Gander (CYQX) - Baltimore
(KBWI).
(c) Data from the Federal Aviation Authority and EuroControl showed
that another Boeing 727, registered as N724CL, followed a similar route to
N787WH on its flight circuit executed on 15-18 February 2005:
Van Nuys (KVNY) - Baltimore (KBWI) - Santa Maria, Azores (LPAZ) -
Gran Canaria (GCLP) - Rabat (GMME) - Amman (OJAM) - Vilnius (EYVI) -
Keflavik (BIKF) - Goose Bay (CYYR) - Baltimore (KBWI) - Van Nuys
(KVNY).
(d) Both planes travelled from the USA to Morocco; their paths then
diverged, as N787WH went on to Romania and N724CL to Amman,
Jordan. Both planes then re-converged on Lithuania, arriving within
twenty-four hours of each other, before returning to the USA.
(ii) Rendition from Lithuania (25 March 2006)
115. In his initial submissions the applicant did not indicate any specific
date of his rendition from Lithuania.
116. In his Additional Submission of 10 September 2012 (see also
paragraph 112 above), he stated that, according to public sources, the CIA
“black site” in Lithuania had been closed “in the first half of 2006 and its
occupants transferred to Afghanistan or other countries”.
The applicant indicated 25 March 2006 as the date of his rendition from
Lithuania, which he linked with the flight circuit executed through Palanga
Airport in Lithuania by the CIA rendition plane registered as N733MA on
23-27 March 2006. It was alleged that he had been transferred to
Afghanistan by the so-called “double-plane switch”. This operation was
executed by using two planes, each one of which completed only half the
route so that the CIA prisoners could be transferred from one plane to
another in an airport in which they converged. It involved N733MA and
another CIA rendition aircraft registered as N740EH, which both made a
connection in Cairo on the night of 26 March 2006.
117. It was submitted that N733MA’s landing in Palanga on 25 March
2006 had been mentioned in the Lithuanian Parliamentary inquiry. No
further information about it was provided by the Parliamentary
investigators, other than that “no customs inspection was carried out” and
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
39
the border guard provided “no records of the landing and inspection of this
aircraft” (see also paragraph 173 below).
While an entry in the records of the Palanga Airport indicated that
N733MA departed from Palanga to Porto, Portugal on 25 March 2006, the
analysis of flight plan data released by PANSA and EuroControl showed
that N733MA did not fly to Porto but proceeded to Cairo, Egypt. On
26 March 2006 in Cairo the plane converged with another Boeing 737
rendition aircraft registered as N740EH. Afterwards, N733MA travelled
from Cairo to Heraklion, Greece. It had left Heraklion for Keflavik, Iceland
in the morning of 27 March 2006. On 26 March 2006 N740EH, shortly after
the arrival of N733MA in Cairo, took off from there for Kabul, Afghanistan.
It then stopped briefly in Amman, Jordan and travelled to Heraklion,
Greece. On 28 March 2006 it left Heraklion for Keflavik, Iceland.
Both planes were chartered by CSC and operated by Miami Air
International, Florida.
(b) Evidence before the Court
118. The applicant produced flight and other data from multiple sources,
including extracts from EuroControl and Lithuanian aviation authorities’
flight records, flight messages regarding circuits executed by N787WH on
15-19 February 2005, N724CL on 15-18 February 2005 and the landing of
N7333MA at Palanga Airport on 25 March 2006, as well as aircraft charter
contracts concluded in respect of those flights.
He also produced, among other things, flight data concerning the
“double-switch” flight circuits executed by planes N308AB and N787WH
between 4 and 7 October 2005 and by N733MA and N740EH on
23-28 March 2006, the Report to the Lithuanian Government on the visit to
Lithuania carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from
14 to 18 June 2010 (“2011 CPT Report”) and the Briefing and Dossier for
the Lithuanian Prosecutor General: CIA Detention in Lithuania and the
Senate Intelligence Committee Report dated 11 January 2015 and prepared
by Reprieve (“2015 Reprieve Briefing”).
119. Other evidence before the Court comprised the 2014 US Senate
Committee Report, publicly available flight data, testimony of the experts
heard at the fact-finding hearing and the material of the PowerPoint
presentation given by Senator Marty and Mr J.G.S.
(i) The 2015 Reprieve Briefing
120. The 2015 Reprieve Briefing states that the partially released 2014
US Senate Committee Report confirmed previous accounts of CIA secret
detention in Lithuania and existing public source data on transfer dates of
prisoners into and out of Lithuania and referred to prisoners held in
Lithuania. The conclusions were as follows:
40
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
(a) it was established beyond reasonable doubt that one of the facilities
adapted by the CIA in Lithuania was used to hold prisoners;
(b) prisoners were transferred into this facility in February and October
2005;
(c) prisoners were transferred out of this facility in March 2006;
(d) the transfers were carried out on planes contracted to Computer
Sciences Corporation, all operating within a linked group of contracts.
121. The document summarises key statements in the 2014 US Senate
Committee Report relating to three CIA detention facilities referred to
therein – Detention Site Black, Detention Site Violet and Detention Site
Brown and, using also other public source data, concludes that Detention
Site Violet was located in Lithuania. Also, on the basis of the number of the
characters blackened in the redacted passages of the report, it attempts to
decipher certain dates.
The 2015 Reprieve Briefing’s findings as to the operation of the CIA
secret detention site in Lithuania and the flights indicated by the applicant as
those on which he could have been transferred from Morocco to Lithuania
and out of Lithuania can be summarised as follows.
(α) As regards the colour-coded names of the CIA detention facilities and
periods of their operation
122. The Reprieve document provides the following information:
(a) According to the 2014 US Senate Committee Report, CIA detainees
were transferred to Detention Site Black in “the fall of 2003”. The closure
of that site was precipitated by revelations in the Washington Post,
published on 2 November 2005 (see also paragraphs 149 and 256 below;
see also Al Nashiri v. Romania, cited above, §§ 133 and 161). At this point
the host country demanded “within [two characters/digits redacted] hours”
the site’s closure and the remaining detainees were transferred out of that
country “shortly thereafter”;
(b) Detention Site Violet, in a different country from “Black”, opened
“in early 2005”. The CIA conducted discussions with officials from
“Violet’s” host country; these discussions left one such official “shocked”
but host country approval was nonetheless given for the facility. Evidently
the CIA had originally constructed a “holding cell” in the same country as
Detention Site Violet, which was not used. They then decided to “build a
new, expanded detention facility” in the same country. Approval was
provided by an official from that country. Money, in the amount of several
million dollars, was also provided to that country, although this required the
development of “complex mechanisms” to effect the transfer.
(c) The first detainees were transferred to the expanded site “Violet”
[fourteen lower-case characters redacted for the date]. This information
corresponds to the flight data analysed by Reprieve, which indicates flights
by two planes N787WH and N724CL, contracted by Computer Sciences
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
41
Corporation, into Lithuania on 17 February and 18 February 2005
respectively. They came via Morocco, Romania and Jordan and were
operating under the same renditions-specific contract.
(d) Detention Site Violet was closed as a result of a lack of available
medical care “in [five lower-case characters redacted for the month] 2006.”
The CIA then transferred its remaining detainees to Detention Site Brown.
At that point, all CIA detainees were located in Country [name redacted];
(e) Detention Site Brown was in the same country as Detention Sites
Cobalt, Gray and Orange. It first received detainees in “[five lower-case
characters redacted for the month] 2006”. The 2014 US Senate Committee
Report states that Khalid Sheikh Mohammed was transferred into Detention
Site Brown on “[two characters redacted for the date] March 2006”. Prior to
this he was held in a different site, to which he had been transferred after
being held at Detention Site Black. He was transferred from that site to site
[six upper-case character redacted] in 2005, on a redacted date [eight lower-
case characters redacted]. Detention Site Cobalt, on the basis of extensive
reporting, can be firmly placed in Afghanistan. Detention Site Brown must
therefore be in the same country.
(f) A transfer of prisoners into Kabul, organised by the CSC within their
rendition contracting network took place on 25-26 March 2006. The transfer
came
from
Lithuania
and
used
two
planes – N733MA
and
N740EH - travelling via Cairo. The former carried out the leg of the trip
from Lithuania to Cairo, the latter from Cairo to Kabul.
(g) The above March 2006 transfer matches the closure of Detention
Site Violet which, according to the 2014 US Senate Committee Report, was
closed as a result of lack of available medical care in [five characters for the
month redacted] 2006. The five-character redacted month could only be
“March” or “April” on account of the length of the redaction. Of these two
possibilities, March fits the data given in the report for Khalid Sheikh
Mohammed’s transfer to Detention Site Brown.
(h) The lack of medical care which caused the closure of Detention Site
Violet seems to have affected Mustafa al-Hawsawi and “four other CIA
detainees”.
(i) On 1 January 2006 the CIA were holding twenty-eight prisoners,
divided between Detention Site Orange and Detention Site Violet.
(j) Despite the redactions in the above citations, careful reading of the
2014 US Senate Committee Report alongside other public source
documents supports the conclusions that:
– Detention Site Black was in Romania;
– Detention Site Violet was in Lithuania;
– Detention Site Brown was in Afghanistan;
– CIA detainees were first transferred into Detention Site Violet in
February 2005;
42
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
– Detainees were transferred out of Detention Site Violet into Detention
Site Brown in March 2006.
(β) As regards the CIA prisoners’ transfers into Lithuania
– February 2005 transfers
123. The Reprieve document states that the first transfer occurred in
early 2005. The transfer could have been carried out on either or both of two
planes (N787WH and N724CL), one from Morocco and Amman, one from
Morocco and Bucharest, arriving in Lithuania on 17 and 18 February 2005
respectively.
(a) N787WH and N724CL were operating under subcontract S1007312
to CSC. Their trips in February 2005 were task orders 20 and 21 of this
subcontract.
(b) Data from EuroControl shows N787WH’s progress from the USA to
Morocco, Romania, Lithuania and back.
On 15 February 2005 it flew from Baltimore Washington International
(KBWI) to Santa Maria, Azores (LPAZ). It then filed a flight plan to
Munich (EDDM) but was impeded by snow and went instead to Salzburg
(LOWS). On 17 February it left Salzburg in the afternoon and headed to
Malaga (LEMG), where it paused until the middle of the night. It then left
Malaga in the early hours of 18 February 2005, arriving in Rabat (GMME)
around 02:40. After just over two hours in Rabat it proceeded to Romania,
filing a flight plan into Constanţa (LRCK) – although its flight plan for the
next leg of the trip was filed not out of Constanţa but out of Bucharest
Băneasa Airport (LRBS). It left Bucharest in the afternoon of 18 February
2005 and filed a false flight plan into Gothenburg, Sweden. Its true
destination was Palanga where it arrived, according to an invoice for “State
Charge for Air and Terminal Navigations Services – Palanga”, at 18:09.
EuroControl and Palanga airport records both indicate that it left Palanga
shortly afterwards, at 19:30, bound for Copenhagen. The plane paused
overnight in Copenhagen, then continued to Gander, Canada (CYQX).
Information released by the Federal Aviation Authority shows that it then
returned to Baltimore International (KBWI/ BWI) and finally to its home
base in Florida (FLL).
(c) Although the Lithuanian Parliamentary Committee on National
Security and Defence inquiry cited N787WH’s flight from Bucharest to
Palanga on 18 February 2005, the Committee was not aware of the plane’s
complete route, its contractual basis, or the identification of its contractual
basis with rendition operations (see also paragraph 173 below).
(d) N724CL’s flight under the same subcontract occurred at the same
time (16-17 February 2005) as the flight of N787WH and took a similar
route: Rabat (GMME) – Amman (OJAM) – Vilnius (EYVI) – Keflavik
(BIKF).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
43
– October 2005 transfer
124. The 2015 Reprieve Briefing states that prisoners were again
transferred into Lithuania from Romania in October 2005. The document
refers to the flight circuits executed by N308AB and N787WH on
1-7 October 2005.
(a) Data from EuroControl shows that N308AB flew from Teterboro,
New Jersey, to Slovakia on 4 October 2005. After an overnight stop it
proceeded to Romania, filing a flight plan to Constanţa on the evening of
5 October 2005. It left Romania soon afterwards (this time filing a flight
plan out of Bucharest) and headed to Tirana, Albania.
(b) An email and a “preliminary requirements” document corresponding
to this flight give further information, namely that on arrival in Romania the
plane was to pick up two people (“PU 2 PAX”) in addition to the five
people it had set off with. In Albania it was to “Drop All PAX”. The
document instructs: “Must have 3 pilots, NO Flight Attendants. At least a
G-IV performance with 10 PAX capability. No customs help”.
(c) Flight data shows that on its drop-off in Albania N308AB was met
by N787WH, which proceeded just over an hour later to Lithuania.
N787WH disguised its route into Lithuania by filing a flight plan to Tallinn
(EETN). The Vilnius Airport “State Charge” document incorrectly asserts
that N787WH arrived from Tallinn, while another airport log shows that it
did in fact arrive from Tirana.
(d) On its arrival in Vilnius, as recorded by the Lithuanian Parliamentary
Committee on National Security and Defence (see also paragraph 173
below), a border guard was prevented from carrying out his duties and
checking the plane; he observed a vehicle drive away from it and exit the
perimeter of the airport.
– March 2006 transfer
125. The 2015 Reprieve Briefing states that the CIA prisoners were
transferred out of Lithuania to Afghanistan in March 2006.
(a) Two trips contracted by Computer Sciences Corporation on
25-26 March 2006, involving planes N333MA and N740EH, connect
Lithuania to Afghanistan and correspond to the closure of Detention Site
Violet and the transfer of its prisoners to Detention Site Brown.
(b) The Lithuanian parliamentary inquiry noted that N733MA had
arrived in Palanga on 25 March 2006, coming from Porto, and that it had
returned to Porto; no further information about it was provided, other than
the facts that “no customs inspection was carried out” and the border guard
provided “no records of the landing and inspection of this aircraft”.
Investigation by Reprieve has established that, far from returning to Porto as
recorded by officials at Palanga Airport, N733MA continued to Cairo,
where it made a connection with N740EH. N740EH then proceeded to
44
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Kabul. Both planes were chartered by Computer Sciences Corporation and
operated by Miami Air International, Florida.
(c) Data provided by EuroControl shows that N740EH flew from New
Castle, Delaware (KILG) to Marrakesh (GMMX) on 23 March 2006. There
is no record of its subsequent movements until 26 March 2006. In the
meantime, N733MA, having left Philadelphia International (KPHL), passed
through Porto (LPPR), then filed a flight plan to Helsinki (EFHK) on the
afternoon of 25 March.
Instead of going to Helsinki, however, N733MA went to Palanga
(EYPA), touching down at 22:25 local time (in close proximity to its
scheduled arrival time of 20:38 GMT). It paused for 90 minutes in Palanga.
Records from EuroControl and the Polish Air Navigation Authority both
show that on leaving Palanga it went not to Porto, as the Lithuanian
parliamentary inquiry was informed (see also paragraph 173 below), but to
Cairo (HECA). Its scheduled arrival time in Cairo was 02:19 GMT on
26 March.
(d) While N733MA was making its way to Palanga, N740EH was on its
way to Cairo. Although records do not show when it arrived in Cairo, or
from where, they do indicate that it left Cairo shortly after N733MA arrived
there – at 02:45 GMT on 26 March 2006 – and that it went from Cairo to
Kabul (OAKB), with an arrival time in Kabul of 08:32.
N740EH then returned westwards from Kabul, pausing briefly in
Amman (OJAI) before making a longer stop in Heraklion (LGIR). It arrived
in Heraklion around 23:07 on 26 March 2006. N733MA had also flown to
Heraklion direct from Cairo and was waiting there, having arrived at 04:59
the same day. Both planes left Heraklion for Keflavik (BIKF) – N733MA
on the morning of 27 March 2006, and N740EH on the morning of
28 March 2006.
(e) Documents relating to the planning of these two trips show complex
attempts to disguise the fact that the purpose of the trips was to provide a
connection between Lithuania and Afghanistan. Both trips were included in
one invoice. Consistent with the other trips mentioned in the briefing, the
invoice relates the task back to the original rendition subcontract.
(f) The flight schedule accompanying the charter contract shows that
both planes’ destinations were kept secret up to the last minute.
(ii) Expert evidence
126. At the fact-finding hearing the experts, Mr J.G.S. and Mr Black,
gave evidence on the alleged operation of the CIA secret detention facility
in Lithuania, code-named “Detention Site Violet” in the 2014 US Senate
Committee Report, the applicant’s alleged rendition to Lithuania, his secret
detention and his transfer out of the country. They replied to various
questions from the judges and the parties. They testified as follows.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
45
127. In the course of the PowerPoint presentation Mr J.G.S., when
explaining in general the rendition scheme operated by the CIA,
characterised Lithuania as a “drop-off” point for CIA detainees, which had
served the purpose of hosting a detention facility. In particular, he stated:
“I wish to begin by setting out in the form of a graphic illustration the system in
which such detention sites were situated. This is a system that spanned the entire
globe but it had at its heart several hubs of operation here on the European continent. I
am using a map of the world to show those present several categories of places at
which aircraft landed in the course of the so-called ‘war on terror’.
We categorised these landing points according to a set of criteria developed in 2006
whereby each landing point exhibited certain characteristics which allowed us to
discern the purpose for which an aircraft landed there. The four categories as denoted
are first stopover points where aircraft tended to stop shortly, primarily to refuel,
staging points where often two or more aircraft would converge in their planning or
preparation of specific detainee transfer operations, pick up points at which individual
suspects, persons captured by the CIA, were taken on board rendition aircraft by CIA
rendition crews in order to be flown to secret detention, in places of the last category
detainee transfer or drop-off points.
The original graphic on display here dates to 2006. We are in a position today to add
one further detainee transfer drop-off point in Vilnius on the territory of the Republic
of Lithuania. Having subsequently uncovered records of flights into and out of that
territory and been able to devote an equal amount of rigour and attention to the
underlying documents, we have found that Vilnius together with Szymany and
Bucharest bore the character of a detainee drop-off point in the CIA’s system of
renditions. I will explain how that occurs by developing some of the analysis further.
...
Vilnius has been added here for the specific purpose of today’s proceedings albeit
that at the time in 2006 and 2007 we did not have sufficient information to place it on
the original map. What we can say today about the CIA’s operations of a ‘black site’
in Lithuania has increased considerably in scope and volume thanks to various
declassifications, also various records obtained through court proceedings in the
United States of America, and indeed through the diligent efforts of various
Lithuanian partners who have investigated this issue since its first exposure in 2009
and 2010.
... [F]or example ... this is a document on record before the court which attests to the
landings of CIA rendition aircraft in Vilnius in the months of February and October
2005. This is significant and this was furnished in 2011 by the Lithuanian authorities
themselves. It is significant because the aircraft denoted in these disclosures are not
the same aircraft that carried out the bulk of the rendition operations in respect of
Poland and Romania earlier in the life of the program.”
128. According to Mr J.G.S., the first CIA detainees were transferred to
Lithuania in February 2005. He stated that 17-18 February 2005 had been
the critical juncture at which CIA detention operations overseas had once
again been dramatically overhauled and that the removal of CIA detainees
from Morocco had led to the opening of their new “black site” in Lithuania.
Mr Zubaydah was transferred to Lithuania in February 2005. Other
detainees were transferred to the country in October 2005. The closure of
46
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
the site had been marked by the transfer of the CIA detainees, including the
applicant, out of Lithuania on 25 March 2006. He referred to the following
elements in support of his conclusions.
129. He first referred to the “cyclical nature” of CIA secret detention
sites and explained its relevance for the opening and closure of the CIA
secret prison in Lithuania as follows:
“The Court will recall my reference to the CIA’s in-house aviation service
providers. There was a shell company known as Aero Contractors that administered
two aircraft N313P and N379P in the early years of the rendition programme and
much of the planning for the flights was done by one provider Jeppesen Dataplan. In
those early years therefore there is quite a consistent pattern to the execution of
rendition operations and that certainly encompasses the timeframe of the Polish site –
from December 2002 until September 2003 – and it encompasses much of the
operations at the Romanian site from September 2003 until November 2005. But in
Lithuania we do not have any record of a single landing of either of those aircraft, the
typical rendition aircraft: neither the Boeing Business Jet, nor the Gulfstream express
plane which were used customarily in the early years. However, through these
disclosures the Lithuanian records allow us to find out how the CIA developed its
methodology, expanded its fleet and in some cases replaced its original operator with
new contractors, new aircraft and new modus operandi.
Among the routes flown by these new aircraft was the putative transfer of the
applicant in today’s proceedings into Lithuania in February of 2005. For reasons I
have addressed in [Al Nashiri v. Romania] proceedings, Madam President, it stands to
reason that February 2005 was another important juncture in the evolution of the CIA
secret detention program. As I will demonstrate in my presentation the programme
was cyclical in character: detention sites did not exist in perpetuity for the entire
lifespan of the war on terror, rather the CIA tended to innovate and improvise to
situations as it found them.
Its earliest sites, in theatre, in a country like Afghanistan, they were able to last
somewhat longer because of the context and often also because of the military support
that they were able to draw upon, but in the cases of Thailand and Poland and
Morocco and even Guantánamo Bay, extenuating circumstances caused by external
factors, whether political, legal or reputational, led to the abrupt closure of detention
sites at moments when the CIA had not necessarily planned for them to close.
So the story of the secret detention programme includes several of these junctures at
which one detention site closes abruptly and another opens in its place. However, that
February 2005 fits into this pattern for the specific reason that in February 2005 the
cooperation with the Moroccan authorities in the administering of a secret detention
site in Rabat, Morocco finally ran aground. All the CIA’s remaining detainees in
Morocco had to be moved out. In February 2005 the flight data tells us that there were
two principal destinations for detainees being taken out of Morocco. Those were the
two European sites. Firstly Romania, which we have addressed in the [Al Nashiri
v. Romania] proceedings, and secondly, for the first time, Lithuania.”
He added:
“Detention sites did not endure for periods of several years, rather at particular
junctures in the programme they were abruptly closed and all classified information
housed in those facilities destroyed. Here we have the example of when Thailand was
closed, December 2002. And by collating material from the reporting the cabling at
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
47
the base with flight data, including that from our own investigations we identified this
juncture of ... December 4th-5th, 2002 as the first of several on which CIA detention
and interrogation operations were dramatically overhauled. That meant that one base
closed - CATESEYE in Thailand and immediately afterwards a new base
opened - QUARTZ base in Poland. And just as the detainees from one site moved to
another so the operational focus shifted with them. QUARTZ became the facility from
5 December 2002, to which the CIA brought its highest value detainees for HVD
interrogation. Likewise, if we move forward nine months, the same report reveals that
QUARTZ itself only existed until 22 September 2003, whereupon QUARTZ base in
Poland was closed and a successor site BRIGHTLIGHT base in Romania was opened,
22 September 2003. This cyclical nature evidenced in the documents and supported
by analysis of the flight data persisted all the way till the end of Europe’s participation
in the rendition programme.
Specifically the last juncture of interest to the Court is that on 25 March 2006.
Detention Site Violet, the Lithuanian site itself, would close and would lead to a
wholesale transfer of detainees from that site to the final site in the programme back
in Afghanistan. So, rather than having multiple sites existing simultaneously and in
perpetuity, the story of this programme is of a shifting operational focus whereby each
site at one time is the hub of operations where the key interrogations are taking place,
where enhanced interrogation techniques are being routinely authorised and
instrumentalised, and where new detainees captured are sent by rendition aircraft in
order to enable this honing of resources.”
130. In this connection, in the course of the PowerPoint presentation,
Mr J.G.S. demonstrated two rendition circuits executed through Lithuania,
the first executed by aircraft N724CL in February 2005, the second by
aircraft N787WH on 5-6 October 2005.
(a) As regards N724CL’s circuit in February 2005:
“This circuit in February 2005 encompasses the period from the 15th to 20th
February 2005 in which two rendition aircraft deployed to Morocco simultaneously.
I shall demonstrate the circuit of the aircraft N724CL which embarked here from
Gran Canaria to the pickup of the remaining detainees in Rabat - Morocco. It flew the
path to Amman - Jordan before flying onward to Vilnius - Lithuania. This is the first
of the landings which the Lithuanian authorities themselves evidenced in their
documentary submissions of 2011. The aircraft landed in Vilnius on 17 February
2005, the date on which the applicant of ours, the beginning of his secret detention in
Lithuania. It departed via Keflavík before returning to its base in the United States.
This simple illustration is backed up by a large trench of documentation and in
particular it is in respect of these contractor operations that we are able to draw upon
the docket of litigation in the United States between two contractors, both of them
servicing the CIA’s rendition programme. The name of the case in question which is
in the records before the Court is Sportsflight Air Inc. [sic] versus Richmor Aviation.”
(b) As regards the N787WH circuit in October 2005, Mr J.G.S. testified
that it had involved the transfer of detainees between the CIA “black sites”
in Romania and Lithuania, which had been disguised by using both the
so-called “dummy” flight planning and the CIA methodology of
“switching” aircraft. The CIA, under its aviation services contract with
48
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Computer Sciences Corporation, tasked two rendition aircraft – N308AB
and N787WH – with flights to Europe simultaneously.
N308AB arrived in Bratislava, Slovakia from Teterboro, USA, while
N787WH landed in Tirana, Albania. A “dummy” flight plan from Bratislava
to Constanţa, Romania was filed in respect of N308AB but when the plane
entered Romanian airspace, the Romanian aviation authorities navigated it
to an undeclared landing in Bucharest. The plane collected CIA detainees
from Romania. Subsequently, N308AB flew from Bucharest to Tirana on
the night of 5 October 2005. The CIA detainees “switched” aircraft in
Tirana; they were transferred onto N787WH for the rendition flight. A
“dummy” flight plan from Tirana to Tallinn, Estonia was filed in respect of
N787WH. Instead, the plane flew to Lithuania and the Lithuanian aviation
authorities navigated it to an undeclared landing at Vilnius in the early hours
of 6 October 2005. The plane dropped off the CIA detainees for ground
transportation to the CIA “black site” in Lithuania. Then the planes
departed; N787WH flew to Oslo, Norway and onwards, N308AB made a
stopover in Shannon, Ireland and returned to its base in the USA (see also
Al Nashiri v. Romania, cited above, § 135).
Mr J.G.S. stated, in particular:
“In respect of Lithuania I would like to draw attention in particular to the records
around the October 2005 flights. On this occasion two aircraft are implicated in the
transfer of a single group of detainees. There are records pertaining to N308AB and
there are also records pertaining to N787WH. N787WH is a Boeing business Jet, a
737, and as I mentioned it took the place of the earlier N313P aircraft in performing
large scale transfers of detainees simultaneously. Among the documents there are
emails and other items of correspondence which give an extraordinary insight into the
CIA’s planning of these operations.
If asked how do we know that the deceit was deliberate, how do we know that the
disguise was a tactic rather than a facet of in-flight changes, I would point to the
documents in this docket which refer explicitly to sleight of hand. They deliberately
purport to file flight plans to destinations of which the aircraft has no intention of
flying and they include such statements as ‘no customs help’ or on occasion ‘drop all
passengers’ or on occasion ‘hard arrival’, which are not legal terms in the planning of
international flights; they are rather efforts to circumvent the system of controls and
regulations put in place by among others the international civil aviation organisation.
This particular circuit, which I will demonstrate, is of great relevance to our
proceedings today because it links the detention site in Bucharest - Romania with the
detention site in Vilnius - Lithuania and demonstrates how the CIA’s tactics to evade
accountability had evolved over the course of the programme. Herein we will see not
only instances of dummy flight planning, the customary filing of false flight plans but
also the use of a new methodology switching aircraft mid operation to avoid the
eventuality that the same aircraft appeared in the site of two different places of
detention.
On this map we have two aircraft which arrived in Europe simultaneously on
5 October 2005. The first N308AB arrived from its base in Teterboro – New Jersey,
the second N787WH arrived from Keflavík and landed at Tirana – Albania. Tirana
Albania was to be the point at which these two aircraft would converge hence it is
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
49
marked here as a staging point. Before arriving there, however, the first aircraft
N308AB filed a dummy flight plan to the false destination of Constanţa, Romania and
then flew to its real destination Bucharest Băneasa airport, where it collected
detainees from the Romanian detention site. After its collection it flew to Tirana from
Bucharest directly with the prior instruction to drop all packs. This in jargon means
the passengers on the plane, explicitly here the crew, the rendition personnel who are
responsible for removing, securing and transporting the detainees. In Tirana the crew
transferred onto the waiting second aircraft N787WH together with the detainees. The
dummy flight plan was then filed for this second aircraft furthering the layers of
deceit. Tallinn, Estonia was used as a false destination to enable the flight to enter
Lithuanian airspace and land at Vilnius airport in Lithuania.
This is the point at which the detainees on board were dropped off, hence the direct
link between the ‘black site’ in Bucharest and the ‘black site’ in Vilnius. Both aircraft
thereafter returned towards the United States, N787WH flying via Oslo and
northward, N308AB flying via stopover in Shannon back to New Jersey. Again
Lithuanian records attest to the landing of N787WH in Vilnius, notwithstanding its
false or ‘dummy’ flight planning and this document, which also forms part of the
records before the court from the Litcargus provider at Vilnius, is the completion of
the switching aircraft operation, a typical and short time on the ground in Vilnius in
the early hours of the morning in which the detainees were transported by ground to
the detention facility in Lithuania.”
131. Replying to the judges’ question about the relation between the
above circuit and the applicant’s case, Mr J.G.S. testified as follows:
“You asked also why did I focus my attention on this pattern of switching aircraft in
October 2005 and it is because that operation links two detention sites in European
territories, namely the detention site in Romania and the detention site in Lithuania,
and illustrates adequately to the Court that there were complex, deliberately deceitful,
tactics at play that make it very difficult to follow a particular detainee’s path for the
transfers that the CIA undertook in moving its detainees from one site to another. That
particular joint operation, involving N308AB and N787WH, is an operation to which I
have devoted considerable time in documenting, in correlating, collating different
information sources and I am confident in pronouncing that as a rendition operation in
which persons from Romania were transported via a switching of aircraft in Tirana to
the site in Lithuania. At this present time that operation stands as the only other
confirmed inward rendition to Lithuania that I have been able to document from
material in the public domain. And it is for that reason that I presented it to the Court
because it enhances the certainty with which we can see a detention site existed in
Lithuania.”
132. In reply to the judges’ question as to whether it could be established
that the CIA detention facility in Lithuania was code-named “Violet” in the
2014 US Senate Committee Report and, if so, on what basis, Mr J.G.S.
testified:
“The Detention Site Violet is the colour code name used to denote Lithuania in the
[2014 US Senate Committee] Report. I have reached this conclusion by collating
information around specific dates, specific detainees, and specific junctures in the
broader CIA programme that are explicitly mentioned and unredacted in the report. I
refer in particular to the nexus between different detention sites and the cyclical nature
of the programme, such that when one site closed another opened, when one site was
demoted in importance another site was promoted, and establishing the identity of
50
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Detention Site Violet as Lithuania derives from a deep understanding of both
Romania’s role under the code name ‘Black’, and in particular the role played by
Morocco, an authority that is only referred to by a country letter rather than a colour,
because it did not act as a detention site or ‘black site’ within the CIA structure. But I
would direct the Court in particular to pages 139 to 142 of the [2014 US Senate
Committee Report], in which the role of Morocco is described extensively as a
country which ‘detains individuals on the CIA’s behalf’ and through a close reading
of these passages linked with the evidence I have presented in these and earlier [Al
Nashiri v. Romania] proceedings, one reaches the incontrovertible conclusion that
when the facility in Morocco was finally closed the only possibility is that Detention
Site Violet, namely Lithuania, then took the detainees from that country in
conjunction with ‘Detention Site Black’. In particular a paragraph on page 142, which
describes the end of relations between the CIA and Morocco, concludes with the
passage that the CIA detainees were transferred out of this country in February 2005
and corresponds precisely with the flight movements, the planning documentation and
the detailed insights afforded by the American litigation proceedings, to lead us from
Rabat - Morocco to Vilnius - Lithuania.”
133. As regards other elements justifying the conclusion that Detention
Site Violet was located in Lithuania Mr J.G.S. testified as follows:
“I would like now to move on to some of the references in the declassified
American documents that might help the Court to place the Lithuanian site in the
context of the broader rendition detention and interrogation programme. In respect of
Lithuania the most important document at hand is the declassified [2014 US Senate
Committee Report], the Feinstein Report as it is sometimes known. Whilst incomplete
and whilst heavily redacted, the document nonetheless plays into the aforementioned
collation or distillation of multiple documentary sources and it is possible to link the
colour coded references to specific detention sites in the report to known and
recognisable host countries of ‘black sites’ including that of Lithuania.
As has been widely reported since this document was declassified the Lithuanian
site is associated with the colour code Violet. References in the [2014 US Senate
Committee Report] to Detention Site Violet accord completely with the timings, with
the character and with the chronological progression of detention operations in respect
of Lithuania. Notably I would point the Court to two sections of the report, pages 96
to 98 and pages 154 to 156. In these two sections the Committee engages in an
analysis of the reasons behind both the opening and the closing of Detention Site
Violet in Lithuania and it delivers several pertinent observations regarding the
question of relations with the host national authorities.
It is important first in order to establish this relation to the coding to recognise that
Detention Site Violet was created in a separate country to any of the other detention
sites mentioned in the report. So, where there is a raft of evidence connecting
Detention Site Cobalt to Afghanistan correlating with many of the detentions we
know took place there and indeed many of the techniques practised there; Detention
Site Green we know to have been Thailand, the place in which Al Nashiri and today’s
applicant Abu Zubaydah were waterboarded and the only site at which videotaping
took place; Detention Site Blue, the first European site at Szymany in Poland to which
both today’s applicant Mr Zubaydah and Mr Nashiri were transferred upon the closing
of the Thai site in December 2002, and as mentioned in earlier [Al Nashiri
v. Romania] proceedings Detention Site Black, the site situated in Romania at which
Mr Al
Nashiri
and
others
were
detained
between
2003
September
and
2005 November.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
51
The reference to a separate country here opens a new territory to the programme.
Here we see discussion of political approval of the site which indicates that the same
processes were aptly as pertained in Poland and Romania and as were described in the
Marty Reports. The same conceptual framework where authorisation was required to
situate a detention site in a European country from the highest levels of government.
Here we have references in descriptive narrative to how Lithuanian counterpart
officials may have been ‘shocked’ by the presence of detainees on their territory but
‘nonetheless’ approved.
We know from both the [US] Senate inquiry and the inquiry undertaken by the
Lithuanian Parliament, the Seimas, that there were in fact two projects in Lithuania
aimed at providing support for the CIA detention operations. These are referred to in
the Lithuanian reports as Project No. 1 and Project No. 2. In the [2014 US Senate
Committee Report] these projects are referred to somewhat more obtusely but notably
it states that by mid-2003 the CIA had concluded that its completed but still unused
holding cell in this country, by which is meant Project No. 1, was insufficient, given
the growing number of CIA detainees in the programme and the CIA’s interest in
interrogating multiple detainees at the same detention site. This sentence is very
important in respect of Lithuania because it corresponds precisely with the description
of the provenance of Project No. 2 furnished by the Lithuanian Parliament. It states
the CIA thus sought to build a new expanded detention facility in the country. The
Committee report provides insight into both the opening and the closing of the site
referred to in Romania and this is important because it will also help to situate the
Lithuanian site in the timeline. Here, as mentioned in earlier proceedings, we learned
that Detention Site Black opened in the fall of 2003, the specific date 22 September
2003. We also learn that it closed within a period of only a few days after the
publication of the exposé in the Washington Post; namely on 5 November 2005. The
Detention Site Black closed. Therefore, the reference to a separate country means a
site that endured beyond Detention Site Black in Romania and in fact endured beyond
the period at which the secret detention system in Europe was known about, hence my
earlier reference. The Lithuanian Detention Site Violet became the longest or latest
standing European detention site. ...”
He added:
“I want to share the few further insights into operations in Lithuania which come by
looking at specific CIA detainee case studies. We have been able definitively to
associate three of the CIA’s high-value detainees with the site in Lithuania. However,
we know that at least five persons were detained there because in the Senate
Committee Inquiry Report it refers to one of these men, Mustafa al-Hawsawi, and
four others simultaneously being in country. So today I am only in a position to
provide references to these three individuals here: the applicant in today’s
proceedings, the applicant Abu Zubaydah, Khalid Sheikh Mohammed, at the bottom
left, who was detained at one time in each of the European sites - in Poland, then in
Romania and finally in Lithuania, and the aforementioned Mustafa al-Hawsawi, who
became one of the reasons for which the site was closed, as I will illustrate.”
134. In reply to the judges’ question whether the applicant’s allegations
that he had been transferred to Lithuania on 17 or 18 February 2005 and
transferred out of the country on 25 March 2006 could be confirmed,
Mr J.G.S. testified:
“With regard to inward transfer, I can attest that an operation was mandated by the
CIA through the air branch of its rendition group to its principal air services/division
52
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
services contractor to carry out a movement of detainees held in Morocco towards
other active ‘black sites’/detention sites, namely those in Romania and Lithuania. I
can further attest by analysis of the documents that this operation was executed by
using two aircraft. The two aircraft you mentioned, N724CL and N787WH. In my
presentation I illustrated the flight of N724CL for the express reason that that aircraft
flew, and can be demonstrated to have flown, to Vilnius. And Vilnius is
unambiguously the airfield associated with the detention site in Lithuania, the physical
location of which, as I have suggested, is undisputed.
In my experience each detention site is inexorably connected with one destination
airfield, hence the Polish site with Szymany airport, hence the Romanian site with
Bucharest Băneasa and in my understanding the Lithuanian site is principally
primarily associated with the airfield Vilnius airport, denoted by its code EYVI. That
is the reason I chose that flight to illustrate to the Court.
However, I cannot rule out the possibility that another airfield may have been used
in conjunction with Vilnius in operating in Lithuania, and at the present time there is
insufficient evidence in the public domain to make a categorical determination, for
example as to the use of Palanga airfield. By way of explanation, the tactical
methodologies of the CIA did evolve over time as I have presented to the Court today.
This switching aircraft methodology was something which was not used in the early
years of the programme, it was rather a later resort. So it is eminently possible that in
pursuit of the same objectives absolute secrecy, security of transfer, evasion of
accountability, the CIA innovated new methods of transfer which entailed using other
airports inside the territory of Lithuania. I cannot rule that out nor can I make a
categorical pronouncement as to which of those two aircraft brought Mr Zubaydah to
Lithuania.
I can, however, state that he was detained there in that last year of Europe’s
participation in the ‘black sites’ programme, and that at this moment the only known
and evidenced outward flight from Lithuania was the N733MA flight on 25 March
2006, which engaged in an analogous switching aircraft operation, and carried
ultimately the detainees who were left at Detention Site Violet to Detention Site
Brown, the newly opened site in Afghanistan, thereby closing the chapter on the
Lithuanian site. On that front and again, notwithstanding my recognition that other
evidence may yet be revealed, I would feel confident in associating this aircraft with
the outward rendition of Mr Zubaydah.”
In that context, he also added:
“I cannot rule out that there was another form of deceit or sleight of hand at play
that led to the appearance of two Lithuanian airports in some of these flight routes.
Palanga does not immediately strike me as being an airfield associated with the site
because of its geographical distance from Antaviliai, but I cannot rule out that perhaps
flights landed there and detainees were then transported onwards by some other
means. I do not have categorical information on that question. What I can say is that
the flights mentioned in the statement of facts, as I have read it, include two flights in
this period in February, between 15 and 20 February 2005, one of which is confirmed
to have landed at Vilnius, N724CL on 17 February, the other of which N787WH is
recorded as having landed at Palanga. On one of these aircraft the applicant was
brought to Lithuania but beyond that categorical certainty is not yet achievable.”
As regards the applicant’s transfer out of Lithuania, he further stated:
“You asked about the destination of his outward flight and it is fairly clear that that
was Afghanistan. I would say beyond a reasonable doubt he was taken to Afghanistan
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
53
when he left Lithuania, because he was one of the fourteen high-value detainees who
were transported from Afghanistan to Guantánamo Bay and declared by President
George W. Bush to have been held in the CIA programme in September 2006, when
he revealed its existence for the first time to the world. So there were no further
renditions between March 2006 and September 2006. So I would be confident in
concluding that he was taken from Lithuania to Afghanistan and thereafter to
Guantánamo, and I believe the records that are before the Court state as to how and
when those transfers took place.”
135. As regards the applicant’s alleged detention at the CIA detention
site in Lithuania and the closure of that site, Mr J.G.S. also stated:
“Mr Zubaydah does not have a mention by name in [the 2014 US Senate Committee
Report] in connection with the Site Violet but the other two detainees cited here, both
do. In the case of Khalid Sheikh Mohammed, there is a lengthy description of his
detention in multiple different sites, notably in this passage the reference to his being
transferred to Detention Site Violet on that earlier switching aircraft circuit in October
2005. He was also held in Lithuania up until the point of the site’s closure. Hence his
final transfer to Detention Site Brown which was in Afghanistan on March 25, 2006.
The passage around Khalid Sheikh Mohammed also talks about how reporting around
him accounted for up to 15% of all CIA detainee intelligence reporting, which
demonstrates his enduring importance to the purported intelligence gathering
objectives of the programme. I find that pertinent because Khalid Sheikh Mohammed
was detained in Poland, he was detained in Romania, he was detained in Lithuania,
and he stands as a symbol of the centrality of these detention sites in Europe to the
overall objectives of the CIA’s programme.
The third detainee, Mustafa al-Hawsawi is mentioned in the report in relation to his
need for medical care. In this passage here which comes from the later section,
pages 154 -156, it states that the CIA was forced to seek assistance from three
third-party countries in providing medical care to Mustafa al-Hawsawi because the
local authorities in Lithuania had been unable to guarantee provision of emergency
medical care. And as is stated explicitly in the Senate Committee’s Report, based
upon cables sent from the base at Detention Site Violet, these medical issues resulted
in the closing of the site in this country in the date March 2006. It was at that point
that the CIA transferred its remaining detainees to Detention Site Brown.
In my view these passages, when read in conjunction with the other documents,
constitute a fairly comprehensive record of the reasoning and indeed the methodology
behind the closure of the Lithuanian site. Furthermore, subsequent packet passage
refers to the overall number of persons in the programme at 1 January 2006 as having
been twenty-eight. It states that these twenty-eight persons were divided between only
two active operational facilities at that time. One was Detention Site Orange in
Afghanistan but importantly the other was Detention Site Violet, the Lithuanian site.
The date references here, corresponding with the different flights we have had coming
in and later going out, place Detention Site Violet in that time period as the hub of
detention operations.”
136. In response to the Government’s question as to whether he could
attribute a colour code to each CIA “black site” mentioned in the 2014 US
Senate Committee Report and whether there had been any locations with no
colour codes, Mr J.G.S. stated:
“Yes, I can attribute colour codes as mentioned in the Senate Committee Report to
each of the detention locations that had the character of a CIA ‘black site’. In order to
54
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
be clear, there were some places used by the CIA that did not meet the precise criteria
of a ‘black site’, a customised high-value detainee facility. Those criteria were set out
in the Inspector General’s Report. I indicated it in my presentation, and among the
criteria were the exclusive operation by CIA agents and contractors without the
participation of foreign counterparts. The criteria for a ‘black site’ are in fact
enumerated in several of the CIA documents and those sites in the Senate Committee
Report were all accorded a colour code. So, for example, whilst Lithuania is
associated with Violet, Romania is associated with Black, Poland is associated with
Blue, Thailand is associated with Green, in Afghanistan there are several sites,
notably Cobalt, Orange and Brown. At Guantánamo also there are multiple sites,
notably Maroon and Indigo in the report. But Morocco, a country in which CIA
detainees were housed at several points in the programme, does not have its own
colour code because it did not meet the criteria as a customised high-value detainee
facility. Specifically, Moroccans participated in the detention of CIA HVDs on their
territory and they housed those persons within existing detention operations in
Morocco, as is described in the report. So I can attribute colour codes to every one of
the ‘black sites’ and I can also further identify countries that did not have a colour
code, but which bore characteristics unique to one country and through the collation
of other data sources allow me to categorically pronounce where they were situated. I
am not alone in this endeavour, I can say that, having met with several of those
involved in the Senate inquiry process, I believe that most reasonably informed
observers would be able to associate now the publicly available information with at
least one or more of those colour codes. I am not alone, this is not at a simple personal
conclusion. It is one which is widely shared, not contradicted across the community of
investigators who have occupied themselves with these matters.”
137. Replying to the judges’ questions as to whether it could be
established that Abu Zubaydah had been secretly detained at Detention Site
Violet and what was the physical location of that site on Lithuanian
territory, Mr J.G.S testified:
“The report does not mention the applicant Mr Zubaydah explicitly by name in
connection with the Detention Site Violet. However, through an intimate familiarity
with the chronology of his detention, much of which I have presented in evidence in
these proceedings and the prior proceedings, I have reached the conclusion that there
is only one place he could have been in the early part of 2005 and that that place was
indeed Morocco. Furthermore, having closely analysed the text regarding Morocco in
the report, some of which derives from cables declassified correspondence and other
sources which I have also engaged with, I know that the transfers out of Morocco in
2005 went to other active ‘black sites’, that one of these was ‘Detention Site Black’ in
Romania, but that there was also another one in a separate country, to use the terms of
the report and based on the answer I gave to Your Honourable colleague Judge
Sicilianos, this other country was Lithuania. Because the applicant Mr Zubaydah did
not arrive in Romania, ‘Detention Site Black’, which I know based upon my years’
long investigations into the operations of that site much of which I have presented to
the Court, the only other destination to which he could have been transferred was the
active site in Lithuania and this transfer took place in accordance with the flights
described in February 2005. Therefore, on the balance of probabilities, I believe it is
established that Abu Zubaydah was secretly detained at Site Violet.
As to the physical location of the facility in Lithuania it is my understanding that
there is no dispute that there was a facility purpose-built, that this was the converted
site of the horseback riding academy at Antaviliai, that the CIA oversaw the
construction afresh, that this place was referred to as Project No. 2 in the Seimas
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
55
parliamentary inquiry in Lithuania, and that the evidence gathered both through the
Senate Inquiry and through the Lithuanian authorities’ own inquiries is in fact
perfectly convergent on this point.
I should also note that esteemed colleagues in the Committee for Prevention of
Torture have visited the site and chronicled many aspects of it, which accord perfectly
with the description of secret detention facilities I am familiar with from the American
documentation. So as to the physical location, I think it is established beyond a
reasonable doubt that this place was the ‘black site’ on the territory of Lithuania.”
138. In response to the judges’ question as to what extent, in comparison
to Mr Abu Zubaydah’s case against Poland, or to Al Nashiri v. Poland and
Al Nashiri v. Romania, he considered his conclusions in the present case to
be based on the same elements of certainty, Mr J.G.S. stated:
“Thank you, Your Honour, and I appreciate very much the focus on my choice of
words because I have attempted, wherever possible, to be quite precise and
circumspect in the pronouncements I make with regards to issues of fact. You are
quite correct that in respect of this same applicant in his application against Poland I
was able to make categorical pronouncements against a burden of proof beyond a
reasonable doubt, that he was transferred into Poland on a specific date, that he was
subjected to specific forms of treatment, that he was held together with Mr Nashiri
and various other aspects, because they were described chapter and verse in
documents declassified and made public by the CIA itself, notably the Inspector
General’s Report. In respect of Romania, again by virtue of its earlier start date of
operations, it was included by reference in the Inspector General’s inquiry and
furthermore features prominently in the [US] Senate’s inquiry. 2003, according to the
Senate, is the year in which the most high-value detainees persons involved in this
programme were captured and interrogated, so understandably, since the Romanian
site was the hub of operations, the most important ‘black site’ at that time, it is
possible to glean a higher quality and volume of evidence from the declassified
documents in respect of Romania, hence being able to associate more high-value
detainees, more types of treatment as practised on the territory, and indeed a greater
degree of certainty when pronouncing on questions of fact in respect of Romania.
As I mentioned in the presentation, Lithuania was the latest of the European sites to
be opened and therefore received detainees at a later phase of their detention cycles
or, alternatively, received fewer detainees whose cases were subjected to the scrutiny
of the oversight bodies I have mentioned. There is no Inspector General reference to
Lithuania because at the moment when he published his special review in May 2004,
the site in Lithuania had not yet been opened. In the Senate Report there are extensive
references to Detention Site Violet, but naturally because the preponderance of
detainees and their interrogations had taken place in the earlier years of the
programme, it is not possible to find as many specific or explicit date references or
references to specific renditions as is the case for the other two countries.”
139. Lastly, in reply to the applicant’s counsel question as to whether,
based on his years as investigator, he was satisfied or was in doubt as to
Abu Zubaydah’s presence in Morocco, Afghanistan and Lithuania at times
referred to by him, Mr J.G.S. testified:
“Yes, I am satisfied as to the presence of Mr Zubaydah, respectively in early 2005 in
Morocco up to the point where the CIA detention site in Morocco was cleared,
56
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
thereafter on the territory of Lithuania in the detention site coded as ‘Violet’ and
thereafter on the territory of Afghanistan in the detention site coded as ‘Brown’.”
140. Mr Black, in reply to the judges’ question regarding the alleged
existence of the CIA detention facility in Lithuania, in particular whether it
could be established beyond reasonable doubt that it had operated in
Lithuania and, if so, whether its location could be established, stated:
“The answer to both parts of that question is unequivocally yes. It is certainly the
case beyond reasonable doubt that the CIA established a detention centre in Lithuania.
It is certainly the case beyond reasonable doubt that that facility – the facility that they
established was in fact used for the purpose of holding prisoners – was in the
warehouse outside the village of Antaviliai, a little bit to the north-east of Vilnius. So
the issue of the evidence that allows me to make these statements and to say that they
are beyond reasonable doubt is necessarily fairly lengthy and it rests on a number of
key points which I shall do my best to summarise as concisely as possible.
The Senate Report clearly indicated the times of operation of a site which it called
Violet, which operated from February 2005 until March 2006. The site was in a
country where there had previously been another site established that was in fact
never used. This is discussed in the Senate Report. This detail of there having been
two sites, one never used and one which was used between February 2005 and March
2006, corresponds accurately with the details given in the Lithuanian Parliamentary
Committee’s investigation published in 2009, where they state very clearly that their
partners, by which they mean the CIA, equipped two sites: one that was not used and
one that was used for a purpose which the Parliamentary Committee does not reach a
firm conclusion on, at least in its printed document. Now, it is further the case that my
research has established flights going into and out of Lithuania precisely at the times
that prisoners are said to have been moved into and out of the facility in Violet and
that this corresponds with flights into and out of Lithuania in, firstly, February 2005,
then in October 2005 and lastly in March 2006. And it is further the case that all these
flights are contractually related, that is they are related by their contract numbers, their
task order numbers, their invoice numbers and other details to an overall contract, that
– we have been able to establish beyond reasonable doubt – was used by the CIA, by
the US Government, for the purpose of outsourcing the movement of prisoners. I
think that covers the essentials of how we can identify the Violet, the country that site
Violet was in, with Lithuania.
In terms of the precise circumstances of the building in Antaviliai, it is clear from
documents that were gathered by the Parliamentary Committee in Lithuania, as well
as from my own field researches – around that area I made several trips to that place
in 2011-2012 to interview people around there – it is clear from those interviews and
those documents that that building was essentially bought by a company and that
Americans were in it, were fitting it out, were then guarding it, that vehicles were
coming and going with tinted windows, there was one person living in the vicinity
who called this ‘certain emptiness’, was the phrase he used that settled over the site at
the time. The Parliamentary Report is quite clear that the CIA were occupying the
building and it is also quite clear that Lithuanian officers did not necessarily have
access to the entire building or if they did have access to it they did not necessarily
take advantage of that access. It is also clear that the planes which were arriving in
Lithuania, pursuant to the contracts that I mentioned, were being met by a very special
regime of, there is a witness statement, that was made by an employee of the border
guards and transmitted by his boss – whose name I believe is Kasperavičius, although
probably I am pronouncing that wrong – in which he describes the landing of a plane
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
57
on 6 October 2005 in Vilnius, and he describes how he was told by State security
officials that he was not allowed to carry out his normal inspections of the plane and
that, although he was kept away from the plane by a security coordinator, he was able
to see in the distance a vehicle driving away from the plane. Now new documents
which have been released very recently, earlier this month by the CIA pursuant to
information requests by the American civil liberties union, allow us to clarify today
that that plane was transporting Khalid Sheikh Mohammed into Lithuania. Previously
in the dossier that I submitted to the prosecutor in January 2015, I said that it was not
clear whether he came on the February flight or the October flight. It is now clear that
he came on the October flight. I am sorry that it is a rather long-winded answer to
your question, but I think that it has covered most of the main points that I think are
necessary and sufficient to show that there was a prison in Lithuania and that it was in
the site in Antaviliai.”
141. In reply to the judges’ question whether it could be established
beyond reasonable doubt that Mr Abu Zubaydah had been secretly detained
in Lithuania, Mr Black testified:
“I have no doubt that Site Violet was in Lithuania and I have no doubt that prisoners
were held in it, including, as I said before, Khalid Sheikh Mohammed, also including
others who I believe, on the basis of my professional opinion, include Abu Zubaydah.
To explain why I believe Abu Zubaydah was held in Lithuania, we need to retrace our
steps in a way so that I can explain to you the logical sequence of events that leads me
to this conclusion. ...
We ... know that after a certain time in Morocco, the CIA had too many
disagreements with the Moroccan Intelligence Agencies with regard to the treatment
of prisoners in Morocco. This is dealt with at some length in the Senate Report. And
so everyone who was in Morocco was moved out at the latest in February 2005. Now
again, prima facie, it is possible that Abu Zubaydah, being in Morocco in February
2005, was moved either to Romania or to Lithuania. But again, the statement which I
take to be accurate, that he was not in Romania in or prior to the Summer 2005, means
that logically he must have gone to Lithuania on that flight on 18 February 2005. I can
explain momentarily why I believe he was on N787WH and not on N724CL but if
you do not mind I will come back to that.
There is a further indicator of his presence in Lithuania, specifically soon after
February 2005 – which is new research that has been done by my colleague, Sam
Raphael, at the rendition project which has not yet been published, I have seen his
work product and I have worked with it and I believe it will be published later this
year – this research indicates that a cable relating to Abu Zubaydah was sent in March
2005, although the provenance of the cable is redacted, the length of the redaction is
consistent with it coming from Lithuania and inconsistent with the coming from either
of the two possible sites at the time which are in Romania or in Afghanistan.
Cumulatively I take the total effect of all these bits of evidence to my satisfaction to
say that beyond reasonable doubt Abu Zubaydah was held in Lithuania, starting in
February 2005.”
142. As regards the date and the flight on which the applicant had been
transferred from Morocco to Lithuania, Mr Black testified:
“The reason I believe that he was flown in on the plane on 18 February rather than
that on 17 February is simply that when you analyse the logs that we published for the
17 February flights, what appears is that everyone on that plane actually got off it in
Jordan prior to its landing in Lithuania. So I do not think that the N724CL plane, that
58
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
went via Jordan to Vilnius, transported prisoners into Lithuania. What it did in Jordan
I do not know. I think it is also clear, it follows subsequently, that everybody who was
held in Lithuania was moved out in March 2006, on 25 March 2006. I think perhaps it
was previously unclear, a couple of years ago, where their destination was, but it is
now clear – and it has been corroborated by the Senate Report – that the country to
which they were moved was Afghanistan.”
143. In his reply to the judges’ further question about the flight of
N787WH on 18 February 2005, identified as being the one on which the
applicant had been transferred to Lithuania, Mr Black confirmed that, in his
view, on the basis of evidence this had been established beyond reasonable
doubt, adding that “to provide an alternative narrative one ha[d] to enter a
kind of world of absurdity”.
When a similar question regarding the dates on which the applicant had
been transferred into and out of Lithuania was put by the Government –
whose representatives also asked how relevant the N787WH October 2005
flight was in the context of the applicant’s alleged rendition – Mr Black
stated:
“So to clarify, I believe that Abu Zubaydah was flown into Lithuania on N787WH
on 18 February 2005. I believe that he was flown out of Lithuania on N733MA and
N740EH on 25 March 2006. The reason I mention the October 2005 flight is because
it is to that flight that we can firmly correlate, again in my opinion beyond reasonable
doubt, the arrival of Khalid Sheikh Mohammed in Lithuania and I mention it because
(a) it provides more evidence of the pattern of conduct that was engaged by and in
Lithuania and (b) because it is specifically for that flight that we have the data relating
to the very special, as it were, welcoming procedures that the flight had. Although it
has been clarified I believe by the Lithuanian Parliamentary Committee that these
same procedures were also in effect for other flights, but I mention that one because
the document exists that describes very clearly what these procedures were. So I
believe it is important holistically taking into account all the evidence that is available
to us – I believe that flight is another important part of the puzzle.”
144. In response to the Government’s further question whether the 2014
US Senate Committee Report – on which his conclusions were based –
indicated the years and exact months of the opening and closure of
Detention Site Violet, Mr Black stated:
“If I remember rightly, the Senate Report indicates the year and the months are
generally redacted. Because of the way in which they are redacted it is possible to
deduce the number of letters, so in a sense it is easy to say which is a long month and
which is a short month. One can tell that, let’s say, it might be February but not June
or so on. Now, the weights of these redactions has to be calculated in accordance
when they correlate other public information. So, for example, the new document
released of Khalid Sheikh Mohammed’s Combatant Status Review Tribunal, is
consistent with the redacted Senate Report but it also adds new unredacted
information, to the extent that it gives the months of October and March, which are
what our reconstruction initially was. And the same can be said of the redacted
February. In one place there is a word that is the same length as February that has
been redacted and in another place it says ‘in early 2005’. We have the flights that are
the only flights at that point that correspond to it. Taking the whole weight of those
and other indicators, to me, that is the only solution that makes any sense is the
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
59
solution that indeed the site in Lithuania operated at the times that we have stated and
was serviced by the flights that we have stated.”
145. In reply to the Government’s question as to whether the 2014 US
Senate Committee Report did state that the national institutions had refused
high-value detainees access to medical institutions, Mr Black stated:
“Yes, that was specifically stated of Site Violet in the Senate Report and it was also
discussed in the new release of the, I think it is called, the facility audit, which is one
of the documents released in the last few weeks by the CIA. That document describes
the problems that the CIA had in 2005 and 2006 getting medical attention in host
countries. Now the new document, the facility audit, does not specifically mention
which countries it refers to, although the only countries that were operating at the time
that it covers were Lithuania and Afghanistan. The Senate Report on the other hand,
contextually, in that paragraph it is clear, I believe, that it references to Lithuania and
what it says is that they did not have the right type of medical facilities on their site to
deal with medical problems and that they initially had an agreement with the host
country that the host country would provide medical facilities in such eventualities.
The host country had decided that it was not going to do that. The word that is used in
the facility audit is that it ‘reneged’. I do not think that word is used in the Senate
Report.”
(iii) “Detention Site Violet” in the 2014 US Senate Committee Report
146. The 2014 US Senate Committee Report refers to “Detention Site
Violet” in several sections concerning various events.
147. In the chapter entitled “The CIA establishes DETENTION SITE
BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in
Country [REDACTED]” the section referring to Detention Site Violet reads
as follows:
“[REDACTED] In a separate [from country hosting Detention Site Black], Country
[name blackened], the CIA obtained the approval of the [REDACTED] and the
political leadership to establish a detention facility before informing the U.S.
ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to
brief
the
ambassador,
Country
[REDACTED]’s
[REDACTED]
and
the
[REDACTED] probably would ask the ambassador about the CIA detention facility.
After [REDACTED] delayed briefing the [REDACTED] for [number blackened]
months, to the consternation of the CIA Station, which wanted political approval prior
to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official
outside of the [REDACTED] aware of the facility, was described as ‘shocked’, but
nonetheless approved.
[REDACTED] By mid-2003 the CIA had concluded that its completed, but still
unused ‘holding cell’ in Country [REDACTED] was insufficient, given the growing
number of CIA detainees in the program and the CIA’s interest in interrogating
multiple detainees at the same detention site. The CIA thus sought to build a new,
expanded detention facility in the country. The CIA also offered $ [one digit number
blackened] million to the [REDACTED] to ‘show appreciation’ for the [REDACTED]
support for the program. According to a CIA cable however [long passage blackened].
While the plan to construct the expanded facility was approved by the [REDACTED]
of Country [REDACTED], the CIA and [passage redacted] developed complex
60
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
mechanisms to [long passage REDACTED] in order to provide the $ [one digit
number blackened] million to the [REDACTED].
[REDACTED] in Country [REDACTED] complicated the arrangements. [long
passage REDACTED] when the Country [REDACTED] requested an update on
planning for the CIA detention site, he was told [REDACTED] – inaccurately – that
the planning had been discontinued. In [date REDACTED], when the facility received
its first detainees, [REDACTED] informed the CIA [REDACTED] that the
[REDACTED] of Country [REDACTED] ‘probably has an incomplete notion
[regarding the facility’s] actual function, i.e., he probably believes that it is some sort
of [REDACTED] center.”
148. In the chapter entitled “The Pace of CIA Operations Slows; Chief
of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA
Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing
Problem’”, the section referring to Detention Site Violet reads as follows:
“[REDACTED] In 2004, CIA detainees were being held in three countries: at
DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility
[REDACTED] in Country [REDACTED], as well as at detention facilities in Country
[REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in
early 2005.”
149. In the chapter entitled “Press Stories and the CIA’s Inability to
Provide Emergency Medical Care to Detainees Result in the Closing of CIA
Detention Facilities in Countries [REDACTED] and [REDACTED]”, the
section referring to the disclosure regarding CIA secret prisons in Europe
published in the Washington Post and the closure of Detention Site Black
and Detention Site Violet reads as follows:
“In October 2005, the CIA learned that the Washington Post reporter Dana Priest
had
information
about
the
CIA’s
Detention
and
Interrogation
Program,
[REDACTED]. The CIA then conducted a series of negotiations with The Washington
Post in which it sought to prevent the newspaper from publishing information on the
CIA’s Detention and Interrogation Program.
...
After publication of the Washington Post article, [REDACTED] Country
[REDACTED] demanded the closure of DETENTION SITE BLACK within
[REDACTED two-digit number]. The CIA transferred the [REDACTED]| remaining
CIA detainees out of the facility shortly thereafter.
...
[long passage REDACTED] In [REDACTED] Country [REDACTED] officers
refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite
earlier discussions with country representatives about how a detainee’s medical
emergency would be handled. While the CIA understood the [REDACTED] officers’
reluctance to place a CIA detainee in a local hospital given media reports, CIA
Headquarters also questioned the ‘willingness of [REDACTED] to participate as
originally agreed/planned with regard to provision of emergency medical care’. After
failing to gain assistance from the Department of Defense, the CIA was forced to seek
assistance from three third-party countries in providing medical care to al-Hawsawi
and four other CIA detainees with acute ailments. Ultimately, the CIA paid the
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
61
[REDACTED] more than $ [two-digit number redacted] million for the treatment of
[name REDACTED] and [name REDACTED], and made arrangements for [name
REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical
issues resulted in the closing of DETENTION SITE VIOLET in Country
[REDACTED] in [five characters for the month REDACTED] 2006. The CIA then
transferred its remaining detainees to DETENTION SITE BROWN. At that point, all
CIA detainees were located in Country [REDACTED].
...
The lack of emergency medical care for detainees, the issue that had forced the
closing of DETENTION SITE VIOLET in Country [REDACTED] was raised
repeatedly in the context of the construction of the CIA detention facility in Country
[REDACTED].
...
In early January 2006, officials at the Department of Defense informed CIA officers
that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA
detainees at the U.S. military base at Guantánamo Bay, Cuba. At the time, the CIA
was holding 28 detainees in its two remaining facilities, DETENTION SITE
VIOLET, in Country [REDACTED], and DETENTION SITE ORANGE, in Country
[REDACTED]. In preparation for a meeting with Secretary of Defense Rumsfeld on
January 6, 2006, CIA Director Goss was provided a document indicating that the
Department of Defense’s position not to allow the transfer of CIA detainees to U.S.
military custody at Guantánamo Bay ‘would cripple legitimate end game planning’
for the CIA.”
2. Detention and treatment to which the applicant was subjected
150. The applicant submitted that throughout his detention by the CIA
he had been subjected to torture and other forms of ill-treatment prohibited
by Article 3 of the Convention.
In that regard he relied, among other things, on his own description of his
experience in CIA custody and conditions of detention, as related in the
2007 ICRC Report. The report was based on interviews with the applicant
and thirteen other high-value detainees, including Mr Al Nashiri, after they
had been transferred to military custody in Guantánamo (for more details,
see paragraphs 296-299 below).
151. Annex I to the 2007 ICRC Report contains examples of excerpts
from some of the interviews conducted with the fourteen prisoners. These
excerpts are reproduced verbatim. The verbatim record of the interview with
the applicant gives details of his ill-treatment in the CIA custody “regarding
his detention in Afghanistan where he was held for approximately nine
months from May 2002 to February 2003”.
The applicant’s account of the abuse that he endured in CIA custody as
rendered in the 2007 ICRC Report reads, in so far as relevant, as follows:
“I was then dragged from the small box, unable to walk properly, and put on what
looked like a hospital bed, and strapped down very tightly with belts. A black cloth
was then placed over my face and the interrogators used a mineral water bottle to pour
water on the cloth so that I could not breathe. After a few minutes the cloth was
62
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
removed and the bed was rotated into an upright position. The pressure of the straps
on my wounds was very painful. I vomited. The bed was then again lowered to a
horizontal position and the same torture carried out again with the black cloth over my
face and water poured on from a bottle. On this occasion my head was in a more
backward, downwards position and the water was poured on for a longer time. I
struggled against the straps, trying to breathe, but it was hopeless. I thought I was
going to die. I lost control of my urine. Since then I still lose control of my urine when
under stress.
I was then placed in the tall box again. While I was inside the box loud music was
played again and somebody kept banging repeatedly on the box from the outside. I
tried to sit down on the floor, but because of the small space the bucket of urine tipped
over and spilt over me. ... I was then taken out and again a towel was wrapped around
my neck and I was smashed into the wall with the plywood covering and repeatedly
slapped in the face by the same two interrogators as before.
I was then made to sit on the floor with a black hood over my head until the next
session of torture began. The room was always kept very cold.
This went on for approximately one week. During this time the whole procedure
was repeated five times. On each occasion, apart from one, I was suffocated once or
twice and was put in the vertical position on the bed in between. On one occasion the
suffocation was repeated three times. I vomited each time I was put in the vertical
position between the suffocations.
During that week I was not given any solid food. I was only given Ensure to drink.
My head and beard were shaved every day.
I collapsed and lost consciousness on several occasions. Eventually the torture was
stopped by the intervention of the doctor.”
152. A more detailed description of various methods of ill-treatment
inflicted on the applicant as related in the 2007 ICRC Report and the 2004
CIA Report can be found in Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 102-107).
153. In connection with the fact-finding hearing, the applicant also
produced an extract from partly declassified transcripts of hearings before
the Combatant Status Review Tribunal in Guantánamo, held on 27 March
2007, during which he had related his treatment in CIA custody. That
document was released on 13 June 2016. It reads, in so far as relevant, as
follows:
“In the name of God the Merciful. Mr. President and Members of the Tribunal, I
would have liked to have spoken to you today on my own, but I have been having
seizures lately which have temporarily affected my ability to speak and write without
difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I
hope from you justice, and I know that is what you seek. Do not make the mistake the
CIA has made when they first arrested me on 28 March 2002. After months of
suffering and torture, physically and mentally, they did not care about my injuries that
they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my
reproductive organs. They didn’t care that I almost died from these injuries. Doctors
told me that I nearly died four times. Then they transferred me to a secret location.
They transferred me in a way that a normal, ordinary person would be embarrassed to
be treated. They even prevented me from going to the bathroom at least five times,
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
63
and sometimes I was deprived from being able to go to the bathroom for 24 to 36
hours when we travelled. ... They did this to me because they thought I was the
number three leader in al Qaida and a partner to USAMA BIN LADEN, as is
mentioned in the unclassified Summary of Evidence against me.
...
First thing, during I’m still – I was in – still in the hospital. They would ask me and I
would answer. From the hospital, after, I don’t know how many months, how many
times. They take me to their secret place. From that lime I was naked. And I think you
know how much it is the bad for us as the Muslims, and I think it is problem for you
as Christian or Jew. I don’t know but at least for us, it was very bad thing. I was too
weak; they make me sleep in a metal bed, [via Language Analyst] a medical metal
bed. It look like this. Naked and feel cold and this still bleeding [pointing to the inside
of left thigh urea] from this area. ... So it take days and days, too cold place, naked and
position sleeping. After this, they put me in the chair – same circumstance – naked,
too much cold, no food, only Ensure [Language Analyst clarifies Ensure –Force
feeding Ensure]. ...
And they not give me chance, all this, maybe one-two week, I don’t know the time.
No food, no sleep, not allowed to sleep. When I feel sleep, they shake me like this
[shaking chair] or make me stand. But all that time I am sitting twenty-four hours,
only sorry again, when I use the toilet, bucket, not real toilet, bucket near of me and in
front of them, and from that time I feel shy ...
So all that time they ask me, they talk. One person talk and they leave another two,
another two another two, no sleeping, no food, nothing, and cold, cold. ... After time, I
don’t know how many, it’s weeks and weeks, they give me chance to sleep once.
Maybe once in the two months, two weeks. I don’t know exactly, once a month. I
again make me sit on the floor. Also cold, naked, try to cover my private part, because
the shackles even I can’t because kind of chair like this but it have [via President and
Language Analyst arm rest]. So I tried to cover nothing and start makes me stand
hours and hours. ...
I request, I tell him, ‘do as you like; tell me the time I want to pray. No chance to
pray. Give me the time and not need water. I need pray without cleaning. I should
make some cleaning before I pray’. I make request number of time. Nothing. After
this put me in the big box same my tall but it’s not and they put the bucket with me.
Toilet bucket. I had no chance to sit, only in the bucket and because the bucket its not
have cover or sometime they put cover I found myself inside the bucket like this
[trying to move and show while in chair]. And the place too close; I take hours and
hours ‘til he came and save me from the bucket, again and again sorry it full of urine.
And start from that time-time and time put me in this and put me in small box. I can’t
do anything. I can’t sit stay do anything and hours and hours. Start beat me in the
wall ... Beat me badly in the back, in my back, in my head. Last thing, of course same
thing use again and again, different time, plus they put me in the same [via Language
Analyst] a medical bed. They shackle me completely, even my head; I can’t do
anything. Like this and they put one cloth in my mouth and they put water, water,
water. ...
Last thing they do they – I am still shackled. I was naked; I am naked; they bring the
[via Language Analyst] interrogator, female interrogator in front. I was naked, like
this. ...
But the truth after this after the second – or second – after one complete year, two
year, they start tell me the time for the pray and slowly, slowly, circumstance became
64
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
good. They told me sorry we discover that you are not number three, not a partner
even not a fighter. ...”
154. At the fact-finding hearing Mr J.G.S. made the following
statements concerning the treatment to which the applicant could be
subjected during his alleged detention in Lithuania:
“The bulk of the enhanced interrogation to which Mr Zubaydah was subjected is
clearly documented as having taken place in Thailand. There he was waterboarded
and there he was subjected to a grotesque form of experimentation whereby
unauthorised and sometimes barely authorised techniques were practised upon him as
the CIA developed its early rules and regulations as to how detainees could lawfully
be interrogated. By the time he reached Poland, however, he had been declared
compliant. So it is not possible to state with certainty which additional techniques
were used on him in Europe.”
In reply to the judges’ further question regarding that matter, he stated:
“It is not possible to pronounce categorically on specific interrogation techniques or
other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania,
because, again, they are not explicitly described in any of the reports available to us in
the public domain. However, I would be prepared to state that the conditions of
confinement in the ‘black site’ in Lithuania alone pass a threshold that in our human
rights protection culture, signified by the European Convention on Human Rights,
amounts to a violation of Article 3. There are, by routine and described in documents,
practices such as sensory deprivation, sleep deprivation, denial of religious rights,
incommunicado detention, indefinite detention on a prolonged basis, as well as a
variety of conditioning techniques, as the CIA calls them, which in any other case
would themselves be considered forms of ill-treatment. Here they do not even warrant
mention in the reporting, because they had become commonplace, but I would not
wish for the absence of explicit descriptions of waterboarding or other EITs to be
taken as a sign that he was not ill-treated during his time in Lithuania. And I should
also point out that, having been detained at that point for more than three years and
even up to four years in the totality of his transfer through the sites, there must have
been a cumulative effect to the ill-treatment which he underwent at the hands of his
captors.”
155. Mr Black testified as follows:
“... [I]t is true that relatively there is less information about treatment of prisoners in
the CIA detention programme in 2005-2006 than there is in the previous years. There
are a few exceptions to this. The recently declassified Memorandum from the CIA’s
Office of Medical Services, which is part of the batch of the records declassified
earlier this month, is dated December 2004. It comes into force directly prior to the
time that – I take - Abu Zubaydah to have been rendered into Lithuania. This
document describes basically the full range of enhanced interrogation techniques, in
other words it makes clear that as of December 2004 and thus into 2005, that this full
range of techniques is available, it is on the menu. In terms to what extent these
techniques were used, we have relatively few indications but there are a couple that I
think are worth mentioning. The Senate Report states that there are several occasions
on which for example the CIA failed to adhere to his own guidelines in keeping naked
prisoners in cold conditions. The guidelines are set out in the Memorandum that I just
mentioned, the December 2004 Office of Medical Services Memorandum. The Senate
Report says that after that Memorandum, going up until the last time it cites is
December 2005, there were prisoners who were being held in colder conditions than
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
65
what this Memorandum sanctioned. Likewise there were prisoners who were captured
in 2005, including Abu Faraj al-Libbi, whom we know from the Senate Report was
exposed to lengthy sleep deprivation. Beyond that I do not have any further
information about precise conditions, although it is clear – it has been reiterated by the
recent batch of declassified documents – that during this time 2005 – 2006, prisoners
continued to be held in solitary confinement, that is clear. It is also clear that prior to
their arrival in the last site in Afghanistan, which was in March 2006, they did not
have any access to natural light. The first time they had access to natural light was
following that arrival in March 2006. That is pretty much all I can say on the topic.”
156. The 2014 US Senate Committee Report states that “from Abu
Zubaydah’s capture ... to his transfer to Department of Defense custody on
September 5, 2006, information provided by Abu Zubaydah resulted in 766
disseminated intelligence reports”, of which ninety-five were produced
during the initial phase of his detention in April and May 2002 (which
included a period during which the applicant was on life support and unable
to speak) and ninety-one during the months of August and September 2002.
E. The applicant’s further transfers during CIA custody (until
5 September 2006) as reconstructed on the basis of the 2014 US
Senate Committee Report and other documents and as
corroborated by experts heard by the Court
157. In his initial submissions the applicant maintained that after he had
been transferred by extraordinary rendition out of Lithuania, he had been
detained in an undisclosed facility in a third country, from where he had
later been transferred to US custody at Camp 7 at the US Naval Base at
Guantánamo Bay, Cuba.
158. As stated above, according to the experts, on 25 March 2006 the
applicant was transferred from Lithuania to Afghanistan via a double-plane
switch in Cairo and was subsequently detained at the CIA’s only remaining
detention facility – Detention Site Brown (see paragraphs 133-134, 138
and 140-144 above).
159. The 2014 US Senate Committee Report refers to Detention Site
Brown in the context of rendition and secret detention of Khalid Sheikh
Mohammed (referred to as “KSM”) as follows:
“KSM was transferred to DETENTION SITE [REDACTED] on [day and month
REDACTED] 2005, to DETENTION SITE BROWN on March [two-digit date
REDACTED] 2006, and to U.S. military detention at Guantánamo Bay, Cuba, on
September 5, 2006.”
160. The 2014 US Senate Committee Report states that the applicant
“was transferred to U.S. military custody on September 5, 2006.”
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F. The applicant’s detention at the US Guantánamo Bay facility
since 5 September 2006 to present
161. Since 5 September 2006 the applicant has been detained in the US
Guantánamo Bay Naval Base in the highest security Camp 7 in – as
described by his lawyers – “extreme conditions of detention”.
Camp 7 was established in 2006 to hold the high-value detainees
transferred from the CIA to military custody. Its location is classified. It
currently holds fifteen prisoners, including the applicant and Mr Al Nashiri.
Visitors other than lawyers are not allowed in that part of the Internment
Facility. The inmates are required to wear hoods whenever they are
transferred from the cell to meet with their lawyers or for other purposes.
The applicant is subjected to a practical ban on his contact with the outside
world, apart from mail contact with his family.
162. The Inter-American Commission on Human Rights’ Report
“Towards the Closure of Guantánamo”, published on 3 June 2015, describes
general conditions in Camp 7 as follows:
“120. Although progress has been made to improve conditions of detention at
Guantánamo, there are still many areas of concern. The Inter-American Commission
notes in this regard that detainees at Camp 7 do not enjoy the same treatment accorded
to other prisoners; that health care faces many challenges, in particular given the
ageing population at Guantánamo; and that religion is still a sensitive issue. Further,
the IACHR is especially concerned with the suffering, fear and anguish caused by the
situation of ongoing indefinite detention, which has led to several hunger strikes as a
form of protest and, in some extreme cases, to the drastic decision by prisoners to end
their lives.
...
122. The Inter-American Commission has received troubling information regarding
prison conditions at Camp 7, a single-cell facility currently used to house a small
group of special detainees, known as ‘high-value detainees’. These detainees are
reportedly held incommunicado and are not subject to the same treatment accorded to
other prisoners. On May 20, 2013, a group of eighteen military and civilian defense
counsel representing the ‘high-value detainees’ sent a joint request to Secretary of
Defense Charles Hagel to improve the conditions of confinement in Guantánamo.
They pointed out that these detainees are not permitted to contact their families by
telephone or video; that their access to religious materials has been restricted (such as
the sayings and descriptions of the life of the Prophet Mohammed); that they have
limited recreational opportunities; and that they are not permitted to participate in
group prayer, contrary to the entitlements of other detainees.
...
136. The Inter-American Commission considers that the conditions of confinement
described above constitute a violation of the right to humane treatment. Further, in
order to guarantee that prisoners’ rights are effectively protected in accordance with
applicable international human rights standards, the State must ensure that all persons
deprived of liberty have access to judicial remedies. The IACHR notes with deep
concern that prisoners at Guantánamo have been prevented from litigating any aspect
of the conditions of their detention before federal courts, which constitutes per se a
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
67
violation of one of their most fundamental human rights. This point, as well as some
recent developments regarding this issue, will be assessed in the chapter on access to
justice. Further, as it will be addressed below, detainees’ lack of legal protection and
the resulting anguish caused by the uncertainty regarding their future has led them to
take the extreme step of hunger strikes to demand changes in their situation.”
163. The applicant has not been charged with any criminal offence. The
only review of the basis of his detention was carried out by a panel of
military officials as part of the US military Combatant Status Review
Tribunal on 27 March 2007 (see also paragraph 153 above). The panel
determined that he could be detained.
164. The applicant is not listed for trial by military commission. He is
one of the high-value detainees who remain “in indefinite detention” (see
also paragraph 80 above).
G. Psychological and physical effects of the HVD Programme on the
applicant
165. According to the applicant, as a result of torture and ill-treatment to
which he was subjected when held in detention under the HVD Programme,
he is suffering from serious mental and physical health problems.
The applicant’s US counsel have been unable to provide many of the
details of his physical and psychological injuries because all information
obtained from him is presumed classified. The lawyers have stated that
publicly available records described how prior injuries had been
exacerbated by his ill-treatment and by his extended isolation, resulting in
his permanent brain damage and physical impairment.
The applicant is suffering from blinding headaches and has developed an
excruciating sensitivity to sound. Between 2008 and 2011 alone he
experienced more than 300 seizures. At some point during his captivity, he
lost his left eye. His physical pain has been compounded by his awareness
that his mind has been slipping away. He suffers from partial amnesia and
has difficulty remembering his family.
H. Identification of locations of the colour code-named CIA
detention sites in the 2014 US Senate Committee Report by
experts
166. The experts heard by the Court identified the locations of the eight
colour code-named CIA detention sites (see paragraph 24 above) as follows:
Detention Site Green was located in Thailand, Detention Site Cobalt in
Afghanistan, Detention Site Blue in Poland, Detention Site Violet in
Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in
Afghanistan, Detention Site Gray in Afghanistan, and Detention Site Black
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
was identified as having been located in Romania (see also paragraphs 122
and 132-145 above; see also Al Nashiri v. Romania, cited above, § 159).
I. Parliamentary inquiry in Lithuania
167. The facts set out below are based on the Annex to the Seimas’
Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary
investigation by the Seimas Committee on National Security and Defence
concerning the alleged transportation and confinement of persons detained
by the Central Intelligence Agency of the United States of America on the
territory of the Republic of Lithuania” (“CNSD Findings”; see
paragraph 173 below), a document which contains a comprehensive
description of a parliamentary investigation conducted in Lithuania in
2009-2010 in the context of the alleged existence of a CIA secret detention
facility in the country.
168. On 9 September 2009, in connection with various media reports
and publicly expressed concerns regarding the alleged existence of a CIA
secret detention facility in Lithuania, the Seimas Committee on National
Security and Defence (“the CNSD” or “the Committee”) and the Seimas
Committee on Foreign Affairs held a joint meeting at which they heard
representatives of State institutions in relation to the media reports
concerning the transportation and detention of CIA prisoners in the
Republic of Lithuania. The committees did not receive any data confirming
the existence of a CIA prison in Lithuania. Written replies submitted to
them by State institutions denied that such a prison had ever existed.
169. On 20 October 2009, during his visit to Lithuania, the
Commissioner for Human Rights of the Council of Europe, Mr Thomas
Hammarberg urged the authorities to carry out a thorough investigation
concerning the suspicions that a secret CIA prison had operated in the
country.
170. On 20 October 2009, at a press conference, the President of the
Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the
alleged existence of a CIA prison in Lithuania, said that she had “indirect
suspicions” that it could have been in Lithuania.
1. The Seimas investigation and findings
171. On 5 November 2009 the Seimas adopted Resolution No. XI-459,
assigning the CNSD to conduct a parliamentary investigation into the
allegations of transportation and confinement of individuals detained by the
CIA on Lithuanian territory.
The following questions were posed to the CNSD:
(1) whether CIA detainees were subject to transportation and
confinement on the territory of the Republic of Lithuania;
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
69
(2) whether secret CIA detention centres had operated on the territory of
the Republic of Lithuania;
(3) whether State institutions of the Republic of Lithuania (politicians,
officers, civil servants) considered issues relating to activities of secret CIA
detention centres or transportation and confinement of detainees in the
Republic of Lithuania.
172. While conducting the parliamentary investigation, the CNSD
interviewed, either orally or in writing, fifty-five individuals who might
have been aware of information or who declared that they were aware of
information relating to the issues under investigation. The Committee
interviewed politicians, civil servants and officers who had held office
between 2002 and 2005 or at the time of the investigation, including, among
others, the Presidents of the Republic, the Speakers of the Seimas, the Prime
Ministers, the Members of the European Parliament, the Ministers of
National Defence, Foreign Affairs and the Interior, the Vice Minister of the
Interior, the Commanders of the Armed Forces, the Chairmen and members
of the Seimas Committee on National Security and Defence and the Seimas
Committee on Foreign Affairs, the Directors and the Deputy Directors of
the State Security Department (“SSD”), the Director and the Deputy
Directors of the Second Investigation Department under the Ministry of
National Defence, the Commanders and the Deputy Commanders of the
State Border Guard Service at the Ministry of the Interior (“SBGS”),
advisers to the Presidents of the Republic, the Director of the Civil Aviation
Administration, the Director of Vilnius International Airport and the
Aviation Security Director of Vilnius International Airport.
173. In addition, requests for submission of information in writing were
addressed to the various ministries, the civil aviation administration, the
SBGS, Vilnius International Airport, the Customs Department and other
authorities. Requests were also submitted to the international organisation
Amnesty International, Senator Dick Marty and, with the assistance of the
Ministry of Foreign Affairs, the relevant authorities in the United States.
The authorised representatives of the latter replied orally.
In the course of the parliamentary investigation, some facilities and
premises were inspected.
174. On 19 January 2010 the Seimas adopted Resolution No. XI-659,
whereby it endorsed the CNSD Findings, which, in so far as relevant, read
as follows:
“1. Were CIA detainees subject to transportation and confinement on the
territory of the Republic of Lithuania?
According to the data of the state enterprise Oro navigacija [Air Navigation], in
2002-2005 the US aircraft referred to in the media and official investigations of the
European Parliament as aircraft used to transport CIA detainees, i.e. N85VM (GLF4),
N2189M (C-130), N8183J (C-130), N8213G (C-130), 510MG (GLF4), N313P
(Boeing 737), No N379P, (GLF5), N1HC (GLF5), crossed Lithuania’s airspace on
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
29 occasions. These data were presented on 28 April 2006 when preparing a reply to
an inquiry by Dick Marty, Chairman of the Committee on Legal Affairs and Human
Rights of the Parliamentary Assembly of the Council of Europe, regarding the
numbers of 41 aircraft indicated therein.
In the course of the investigation, the Committee established that three occasions of
crossing of Lithuania’s airspace were omitted in the mentioned reply to ... D. Marty ...
and in the data provided by the state enterprise Oro navigacija:
(1) CASA C-212 N96IBW, landed in Palanga on 2 January 2005;
(2) Boeing 737 N787WH, landed in Palanga on 18 February 2005;
(3) Boeing 737 N787WH, landed in Vilnius on 6 October 2005.
In the course of the investigation, with a view to verifying whether the CIA-related
aircraft indicated in the material of the Temporary Committee of the European
Parliament landed at Lithuania’s airports and whether the enterprises referred to in the
material made financial settlements for servicing of these aircraft, the Civil Aviation
Administration was addressed and provided the information on the flights of the US
aircraft, based on the data and financial documents of the companies and aircraft
service enterprises operating at Vilnius, Kaunas, Šiauliai and Palanga airports.
When comparing the submitted data with the material of the Temporary Committee
of the European Parliament, it was established that:
Two CIA-related aircraft landed at Vilnius International Airport:
(1) ’C-130’, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-
Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.);
2) ’Boeing 737’, registration No N787WH (6 October 2005, route Antalya-Tallinn-
Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009
states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m.
According to the documents of the SBGS, this aircraft arrived from Antalya and
departed for Oslo).
Three CIA-related aircraft landed at Palanga International Airport:
(1) ’CASA C-212’, registration No N961BW (2 January 2005, operator Presidential
Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on
5 January 2005 at 9 a.m.);
(2) ’Boeing 737’, registration No N787WH (18 February 2005, operator Victory
Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at
7.30 p.m. It was recorded that the aircraft arrived carrying five passengers and three
crew members);
(3) ’Boeing 737-800’, registration No N733MA (25 March 2006, route Porto
(Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.).
In the course of the investigation, the Committee did not establish any cases of
CIA-related aircraft landing at Kaunas and Šiauliai airports.
Attention should be drawn to the fact that the Committee did not receive any data or
documents from Vilnius International Airport or airport service companies confirming
that on 20 September 2004 and in July 2005 (the exact date was not specified by the
US television channel ABC News) presumable CIA-related aircraft landed at Vilnius
International Airport.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
71
In the course of the parliamentary investigation, the SSD submitted information
regarding its cooperation with the SBGS in 2002-2006. It is evident from the
documents submitted to the Committee that there had been an intensive exchange of
data (including data provided by partners regarding the search for persons suspected
of terrorism) in the field of combating terrorism. A period of time from April 2004
until September 2005 during which the SSD did not provide any information on the
suspected terrorists to the SBGS should be singled out.
During the investigation, three occasions were established on which, according to
the testimony of the SSD officers, they received the aircraft and escorted what was
brought by them with the knowledge of the heads of the SSD:
(1) ’Boeing 737’, registration No N787WH, which landed in Palanga on
18 February 2005. According to data submitted by the SBGS, five passengers arrived
in that aircraft, none of whom was mentioned by the former Deputy Director General
of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the
meeting. According to Customs data, no thorough customs inspection of the aircraft
was carried out and no cargo was unloaded from it or onto it;
(2) ’Boeing 737’, registration No N787WH, which landed in Vilnius on
6 October 2005. According to data submitted by the SBGS, its officers were
prevented from inspecting the aircraft; therefore, it is impossible to establish whether
any passengers were on board of the aircraft. No customs inspection of the aircraft
was carried out;
(3) ’Boeing 737-800’, registration No N733MA, which landed in Palanga on
25 March 2006. According to Customs data, no customs inspection was carried out.
The documents of the SBGS contain no records of the landing and inspection of this
aircraft.
Persons providing explanations to the Committee indicated that in similar cases
cooperation takes place in accordance with the provisions of the Law on Intelligence
in relation to the provision of assistance to an intelligence service in getting
unrestricted access to aircraft and access to/departure from the territory of the airport;
however, as indicated by the information submitted by the SBGS, upon the landing of
the unscheduled aircraft from Antalya at Vilnius International Airport at 5.15 am on
6 October 2005, civil aviation officers prevented the SBGS officer from approaching
the aircraft. In his official report, the officer stated that a car drove away from the
aircraft and left the territory of the airport border control point. Upon contacting the
civil aviation officers, it was explained that the heads of the SBGS had been informed
of the landing of the above mentioned aircraft and the actions taken by the civil
aviation officers. The letter from the SSD marked as ‘CLASSIFIED’ regarding the
mentioned event was received by the SBGS on 7 October 2005, i.e., post factum.
It should to be noted that before the above mentioned event, the SSD had never
issued any letters of similar content to other services. The explanations provided in the
course of the investigation make it evident that oral arrangements had been made with
representatives of the airport and aviation security.
In the course of the investigation, another occasion was established on which the
SSD applied to the SBGS with a similar letter (24 March 2006) in relation to the flight
of an aircraft to Palanga airport on 25 March 2006.
As explained by the heads of the SBGS, this is a common cooperation practice.
According to Commander of the SBGS General S. Stripeika, had the SBGS received
the letter from the SSD before 6 October 2005, the incident would have not occurred
and officers of the SBGS would have not interfered with the activities of the SSD.
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In 2002-2005, the aircraft which official investigations link to the transportation
of CIA detainees crossed the airspace of the Republic of Lithuania on repeated
occasions. The data collected by the Committee indicate that CIA-related aircraft
did land in Lithuania within the mentioned period of time.
The Committee failed to establish whether CIA detainees were transported
through the territory of the Republic of Lithuania or were brought into or out of the
territory of the Republic of Lithuania; however, conditions for such transportation
did exist.
Deputy Director General of the SSD D. Dabašinskas, with the knowledge of
Director General of the SSD A. Pocius, provided the US officers with opportunities
to have unrestricted access to the aircraft on at least two occasions. In addition, at
least on one occasion the opportunities for inspection of the aircraft by the SBGS
officers were deliberately restricted. In all the above-mentioned cases, there was no
customs inspection. Therefore, it was impossible to establish either the identity of
the passengers or the purpose of the cargo.
2. Did secret CIA detention centres operate in the territory of the Republic of
Lithuania?
The cases of partnership cooperation which are of relevance to the parliamentary
investigation, carried out by the SSD in 2002-2006 and involving the equipment of
certain tailored facilities, may be referred to as Project No. 1 and Project No. 2.
Based on the information received in the course of the parliamentary investigation,
the implementation of partnership cooperation Project No. 1 was commenced by the
SSD in 2002. In the course of the project, facilities suitable for holding detainees were
equipped, taking account of the requests and conditions set out by the partners.
Director General of the SSD M. Laurinkus and his deputy D. Dabašinskas both had
knowledge of the project. When instructing the contractors to equip the facilities, the
latter mentioned that the project ‘had been blessed by the top officials of the State’;
however, according to the testimony of the then political leadership, they had not been
informed of it.
According to the data available to the Committee, the facilities were not used for the
purpose of holding detainees. At present, they are used for other purposes.
The SSD submitted information that based on the documents held by the SSD, these
facilities were equipped for the purpose other than holding detainees.
The implementation of Project No. 2, which was also examined in the course of the
parliamentary investigation, was commenced by the SSD in the beginning of 2004.
The necessary acquisitions were made for the purpose of implementation of the
project, construction works were carried out to equip the facility, with the progress of
works ensured by the partners themselves. The building was reconstructed to meet
certain security requirements.
The SSD officers participated in the implementation of this project together with
partners and, according to the officers, had unrestricted access to all the premises of
the facility, however, when representatives of the partners were present in the facility,
they did not visit some of the premises. The time of such meetings and adequate
arrangements were communicated to the SSD officers by Deputy Director General of
the SSD D. Dabašinskas.
According to the SSD officers, representatives of the partners were never left alone
in the facility. They were always accompanied by either D. Dabašinskas or one of the
SSD officers.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
73
According to the information received in the course of the investigation, it is evident
that the SSD did not seek to control the activities of the partners in Project No. 2. The
SSD did not monitor and record cargoes brought in and out and did not control the
arrival and departure of the partners; in addition, the SSD did not always have the
possibility to observe every person arriving and departing.
The procedure for accounting and using monetary funds and material valuables
intended for financing of joint actions is approved by internal regulations of the SSD,
however, based on the explanation provided in the course of the parliamentary
investigation regarding one of the implemented joint projects and monetary funds
used for its implementation, the accounting of these funds was inappropriate.
Explanations provided by individual persons in relation to the sources of financing of
joint actions, amounts of monetary funds used for separate actions or accounting
thereof are not consistent and therefore require further investigation.
The Committee established that the SSD had received a request from the partners
to equip facilities in Lithuania suitable for holding detainees.
While implementing Project No. 1 in 2002, conditions were created for holding
detainees in Lithuania; however, according to the data available to the Committee,
the premises were not used for that purpose.
The persons who gave testimony to the Committee deny any preconditions for and
possibilities of holding and interrogating detainees at the facilities of Project No. 2;
however, the layout of the building, its enclosed nature and protection of the
perimeter as well as fragmented presence of the SSD staff in the premises allowed
for the performance of actions by officers of the partners without the control of the
SSD and use of the infrastructure at their discretion.
3. Did state institutions of the Republic of Lithuania (politicians, officers and
civil servants) consider the issues relating to activities of secret CIA detention
centres in the territory of the Republic of Lithuania, transportation and
confinement of detainees in the territory of the Republic of Lithuania?
The Committee received certain information about international cooperation of the
SSD with partners and application of special measures provided for in the Law on
Intelligence during joint operations. The legal basis of international cooperation of the
SSD is laid down in the Law on Intelligence. ...
When summarising [the relevant provisions of the Law on Intelligence], a
conclusion should be drawn that legal acts do not directly require the directions
(tasks) of international cooperation of the SSD to be approved at any specific political
level (at the State Defence Council, the CNSD); such directions (tasks) used to arise
from a general need for international cooperation and direct contacts of the SSD with
secret services of other countries. However, in seeking to obtain recommendations of
the State Defence Council concerning international cooperation, the SSD could
submit to the State Defence Council (or the President of the Republic, who initiates
sittings of the State Defence Council) the information necessary to draw up such
recommendations. In 2002-2005, such issues were not considered at the State Defence
Council and there were no recommendations. This is partially confirmed by the letter
of the Secretary of the State Defence Council of 3 December 2009, stating that in
2001-2005 wide-scale direct cooperation between the SSD and CIA was mentioned
only once - at a sitting of the State Defence Council (19 September 2001) when
considering the issue on international terrorism and anti-terrorist actions and
prevention, crisis management and the legal base.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
None of the country’s top officials, according to them, were informed about the
purposes and content of partnership cooperation of the SSD in 2002. Only several
officers of the SSD had knowledge of Project No. 1.
According to the testimony of the former Director General of the SSD
M. Laurinkus, in mid-2003 he informed the then President of the Republic R. Paksas
about a possibility, after Lithuania’s accession to NATO, to receive a request to
participate in the programme concerning the transportation of detainees. According to
the testimony of R. Paksas, Lithuania was requested permission to bring into the
country the persons suspected of terrorism. The information submitted to the President
of the Republic did not contain any mention of a detention centre or a prison. In
August of the same year, when President of the Republic R. Paksas enquired the then
acting Director General D. Dabašinskas if there was any new information concerning
Lithuania’s participation in the said programme, he was told that there was no new
information.
Although Director General of the SSD M. Laurinkus received a negative answer
from President of the Republic R. Paksas regarding the bringing into the Republic of
Lithuania of persons interrogated by the USA, neither the then President of the
Republic R. Paksas nor acting President of the Republic A. Paulauskas was asked for
political approval of activities under Project No. 2. M. Laurinkus had knowledge of
launching the activities under Project No. 2 in March-April 2004. According to
President of the Republic V. Adamkus, he was informed about cooperation with the
USA in general terms and no information was provided to him about running of
Project No. 2 in 2004-2006. According to A. Pocius, President of the Republic
V. Adamkus and his advisors were adequately informed of the project. Several SSD
officers, including M. Laurinkus, A. Pocius, D. Dabašinskas, had the knowledge of
Project No. 2 at the time of launching and running thereof.
On 18 August 2009, Head of the SSD P. Malakauskas informed President of the
Republic D. Grybauskaitė (as well as former Presidents of the Republic V. Adamkus
and A. M. Brazauskas) that ABC News was preparing articles about the CIA detainees
who had allegedly been confined in Lithuania and planning to name one of the
facilities owned by the SSD as a prison. P. Malakauskas could not deny the possibility
of confinement in Lithuania of the persons detained by the CIA.
Likewise, while considering the reports of the SSD, the CNSD was provided
information about international cooperation in a fragmentary manner. For instance,
when considering the SSD’s activity report of 2003, it was mentioned that
‘cooperation with NATO member states is in progress. A wish for more active
cooperation with the SSD can already be perceived on the side of the Allies, which
will require additional staff, investments.’ Decisions of the CNSD on the SSD’s
reports never contained any proposals concerning international cooperation.
Information gathered by the Committee and the explanations received by it show
that the State Defence Council, the Government and the Seimas have not
considered issues relating to any activities of secret CIA detention centres in the
territory of the Republic of Lithuania, or to the transportation and confinement of
detainees in the territory of the Republic of Lithuania.
According to the country’s top officials (Presidents of the Republic, Prime
Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas
were informed about the international cooperation between the SSD and the CIA in
a general fashion, without discussing specific operations or their outcomes. The
mention of wide-scale direct cooperation between the SSD and CIA was made only
once, at a sitting of the State Defence Council (19 September 2001) when
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
75
considering the issue of international terrorism and anti-terrorist actions and
prevention, crisis management and the legal bases for all these. Transportation and
detention of detainees were not discussed at the sitting of the State Defence Council
of Lithuania. The CNSD of the Seimas was not informed of the nature of the
cooperation taking place.
On the basis of the information received, the Committee established that when
carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the
then heads of the SSD did not inform any of the country’s top officials of the
purposes and content of the said Projects.”
175. The final proposal was formulated as follows: “to propose to the
Prosecutor General’s Office to investigate whether the actions of
M. Laurinkus, A. Pocius and D. Dabašinskas had elements of abuse of
office or exceeding authority”.
176. The findings were accompanied by eight recommendations,
including, among other things, “enhancing coordination and control of
activities of intelligence services”, “improving the provision of information
to the country’s top officials” and “improving provisions of the Law on
Intelligence”.
2. Extracts from transcripts of the Seimas’ debates on the CNSD
Findings
177. The applicant supplied a summary of the transcripts of the debates
on the CNSD Findings held in the Lithuanian Parliament on 14 January
2010.
178. That documents reads, in so far as relevant, as follows:
“MP A. Anušauskas, Chairman of the CNSD, is invited to present the draft
Resolution on the Findings.
... During the investigation, the Committee obtained considerable amount of secret
information, ranging from restricted to highly classified information marked as ‘Top
Secret’. Because of the high amount of classified information, the preparation of the
findings was not an easy task.
The classified information was related to the activities of secret services and subtle
options the services use in their work. Without these subtle options, neither
intelligence nor cooperation with the special services of other states in such areas as
fight with terrorism would be possible.
Despite that, parliamentary control of secret services must nevertheless be
exceptional and strong. Some of the data, gathered during the investigation, were not
made public as it constitutes a state secret.
To summarize the investigation, the Committee has established that CIA aircraft
have landed in Lithuania. It has not established whether the persons detained by the
CIA were transported to or transferred through the Lithuanian territory; the heads of
the SSD at that time created conditions for the U.S. officers to access the planes
unobstructed at least on two occasions.
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Moreover, at least once State Border Guard Service officers were prevented from
performing border control checks. During all of the mentioned incidents, customs
inspections were not carried out.
The Committee has established that the SSD received a request from partners to
install premises in Lithuania, suitable for keeping detainees. ...
QUESTIONS
(all replies are by MP Anušauskas, Conservative Party, ruling coalition)
MP V. Mazuronis (Order and Justice Party, opposition)
Question: I pity you that you had such an ungrateful task, similar to searching for
life on Mars. I can only express my sympathy for you. But my question is that I have
found in the text of the findings that President Adamkus was briefed of the
cooperation with the U.S. in general terms only, but he was never informed of the
Project No. 2. Mr Pocius claims in his testimony, however, that the President and his
advisers were adequately informed. I can see a contradiction here and my question
would be who of those two individuals have lied? The one saying he was not
informed or the one saying he has informed properly? Or maybe there is a way,
according to our laws, of informing without actually giving information?
Reply: Yes, the question of the level of awareness by the heads of State was being
actively discussed. I have to say that in this case we relied on oral testimonies. The
thing is that there are no written documents, and no recommendations issued by the
State Defence Council. That means, we had to rely on testimonies given by the
highest state officials. On the other hand, the former SSD officer, who was named by
you, introduced us to four methods of passing information onto the head of State.
Only one of those methods seemed adequate. I will not name all of them, but one of
them was ‘I have informed through President’s advisers, and I don’t know if they
understood’. In this case [replying to your question - M.A.], I think, we can select any
of those two options which seems more acceptable to us.
MP V. Andriukaitis (Social Democratic Party, opposition)
Question: The Parliament has set very specific questions for the inquiry, and one of
them was whether CIA detainees were transported to and detained in the territory of
Lithuania. Your answer to that question is Solomon-like - that the Committee has not
established but the preconditions for transportation existed. Preconditions for
transportation exist in the whole world: trains, planes are flying, bicycles are being
ridden. To the question whether secret detention centres were operating, you have also
failed to answer. I want to ask you what exactly prevented you from answering those
very specific questions - lack of data, lack of competence or maybe something else.
Reply: First of all, the Committee is not talking of such general preconditions as
existence of airports, but very specific preconditions. That is, preconditions created by
the SSD officers to enter the territory of Lithuania unobstructed, without aircraft
inspections and customs inspections. These are relatively specific preconditions.
In this case, the findings are not based on assumptions, I will stress this, but on the
testimonies of the witnesses and the documents obtained. Yes, we cannot show in the
findings all of the details revealed by the testimonies and the contents of the
documents obtained, because the detailed information on cooperation with foreign
secret services, its proceedings, objects, contents and results constitute a state secret.
In this case, this is not included in the text of the findings, but that does not mean that
the Committee has not examined this data. Bearing this in mind, what might appear as
assumptions at first, are based on facts and documents.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
77
...
MP J. Juozapaitis (Social Democratic Party, opposition)
Question: Your committee writes in the findings that the preconditions were created
for transportation and detention of persons. My question would be under whose orders
and who has created those preconditions for transportation and detention of those
prisoners in Lithuania?
Reply: I have to mention one circumstance which is often ignored. The Council of
Europe and the European Parliament have also conducted investigations and
established aircraft, planes which were transporting the prisoners. Some of them have
acquired very clear names, and their routes were always directed to Guantánamo, and
then back to Afghanistan, transiting through European states. A list of the aircraft
emerged during those investigations. The aircraft was linked with transportation of
prisoners. Yes, it is not known what was being transported, but it is known that the
prisoners were being transported through European states. The aircraft have crossed
Lithuanian airspace too. Who gave [the orders ...] and who created preconditions? We
named those individuals; three officers who were serving as deputies to the head of
SSD, they are responsible for those actions and possible violations of the laws.
...
MP J. Veselka (Order and Justice Party, opposition)
Question: It is evident from your findings that a secret detention centre was built
here for CIA money. Secondly, there were planes that were prevented by Dabašinskas
from inspection. Further, George Bush has declared during his visit, that Lithuanian
enemies are the US enemies. With no purpose, no one gives this kind of promises.
Further, former SSD heads, as I see them, were great careerists and political cowards.
Fifthly, former President Paksas testified to you that the SSD heads informed him
about these matters. Hence, I draw the conclusion that the rest of the heads, who
pretended they knew nothing, they, honestly speaking, lied to you, because those SSD
officers, careerists and political cowards, could not have done this independently. Or
do you think it’s possible? What needs to be done to make the heads of State to tell
the truth in this kind of situation?
Reply: There are amendments being prepared. First of all, it is necessary to make
sure that document trail is left, because in this case a lot was being done by oral
arrangements. I would not dare to claim the heads of State have lied. More likely they
were not adequately informed, and their advisers testified that they were not being
informed to an extent so that to get a clear picture of cooperation with partners. The
provision of Intelligence Law, that some of the actions require recommendations from
the State Defence Council, was ignored.”
J. Criminal investigation in Lithuania
1. Investigation conducted in 2010-2011
179. On 22 January 2010, the Prosecutor General’s Office opened a pre-
trial investigation in criminal case No. 01-2-00016-10, in relation to abuse
of office, as defined in Article 228 § 1 of the Criminal Code. The scope of
the investigation was defined by the circumstances stated in the CNSD
Findings:
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
(1) the arrival of the United States CIA aircraft in Lithuania and
departure therefrom, what access United States officials had to the aircraft,
and the inspection of the goods and passengers on the aircraft;
(2) the implementation of Project No. 1 and Project No. 2;
(3) whether the leadership of the State Security Department kept the
highest officials of the State informed on the objectives and the content of
Project No. 1 and Project No. 2.
Accordingly, the pre-trial investigation had focussed on unrestricted
landing and departure of aircraft at Vilnius International Airport and
Palanga International Airport, equipment and use of Project No. 1 and
equipment and use of Project No. 2; possible involvement of the highest
officials of the State in activities related to the operation of detention
centres, detainees transportation and detention in the territory of the
Republic of Lithuania.
180. On 5 February 2010 the Speaker of the Seimas gave her permission
to the prosecutors to consult the classified material from the parliamentary
inquiry.
181. From 10 February to 14 June 2010 the prosecutor took evidence
from fifty-five witnesses, including persons holding high-ranking posts in
the SSD, the SBGS and employees of Vilnius and Palanga airports. The
witness evidence is classified secret. The Government produced a publicly
available summary of witness testimony, which is rendered below (see
paragraphs 301-246 below).
182. On 18 February 2010 the prosecutor asked the SBGS for
information concerning an incident that had taken place on 6 October 2005
at 5.15 a.m. when the SBGS officer, a certain R.R. (see also paragraph 366
below) had been denied access to the aircraft whose landing had been
unplanned and he could not inspect that aircraft.
On the same day, the prosecutor also asked the authorities of Vilnius
International Airport for information as to whether the SSD’s letter
regarding actions performed by the SSD in the airport on the night of
6 October 2005 had been received before that date.
183. On 18 February 2010 the Administration of Civil Aviation
informed the prosecutor that, as regards the arrival of aircraft in Vilnius
airport on 6 October 2005, they could have confused the code of Antalya
and Tirana due to their similarity.
184. On 3 March 2010 the prosecutor asked the Customs Department
for certain documents and information whether a customs inspection had
been carried out in respect of, among others, the plane N787WH that had
landed in Vilnius airport from Antalya, including the cargo on board the
plane or the luggage of the passengers.
On 12 April 2010 the Customs Department replied that the flight from
Antalya had not been inspected and that neither information about the
passengers, nor their luggage nor the cargo had been recorded. It also stated
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
79
that the plane N787WH that had landed on 18 February 2005 at 8.09 p.m. at
Palanga airport had not been recorded.
185. On 3 and 4 March 2010 the prosecutor made various requests for
information and documents to the SBGS and Vilnius and Palanga airports.
In particular, he asked for copies of any SSD’s requests for access to the
aircraft, airport registration records, flight schedules and flight service
invoices.
He subsequently received the following replies:
(a) the SBGS had received a classified letter from the SSD regarding
access to the aircraft on 6 October 2005 after that date;
(b) Vilnius airport had not received the SSD’s requests;
(c) flight schedules supplied by Vilnius airport confirmed that on
6 October 2005 the plane N787WH had arrived from Tirana and not from
Antalya; it had then departed for Oslo;
(d) Palanga airport had received no requests from the SSD;
(e) flight schedules supplied by Palanga airport confirmed that N787WH
had been listed as the flight from Bucharest to Copenhagen.
186. On 17 March 2010 the prosecutor carried out an on-site inspection
of Project No. 1. In that connection, a record of the inspection and plan of
the site were drawn up, and photos of the site were made (see also
paragraph 361 below).
187. On 2 April 2010 the prosecutor received information relating to the
transfer of title to Project No. 2 (land, buildings and other assets) to the
State and the transfer of the property into the SSD’s trust.
188. On 12 and 13 April 2010 the prosecutor made further requests for
information and documents to the Aviation Security authorities at Vilnius
airport and to the Ministry for Transport and Communications.
189. On 27 May 2010 the SSD supplied copies of documents, including
an operational action plan regarding the selection of premises for “the
protection of secret intelligence collaborators” (see also paragraph 365
below).
190. On 4 June 2010 the prosecutor carried out an on-site inspection of
Project No. 2. In that connection, a record of the inspection and plan of the
site were drawn up, and photos were made (see also paragraph 362 below).
191. On 20 September 2010, Reprieve made a “request for
investigation” to the Prosecutor General, stating that they were providing
legal assistance to the applicant and asking that the prosecutor “urgently
investigate new and credible allegations” that Abu Zubaydah had been held
by the US in Lithuania “sometime from 2004 to 2006”. They also asked the
prosecutor to seek clarifications from the applicant and order an “urgent
preservation and disclosure” of all relevant evidence in the possession of US
and Lithuanian authorities. As regards the applicant’s clarifications, they
submitted a list of questions to him, offering assistance in transmitting them
to him and making a declassification request to the US authorities in respect
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of his future answers. In the alternative or in addition, they proposed that the
Lithuanian authorities could ask the US authorities to be allowed to
interview the applicant themselves, with counsel present. They provided the
following factual information on the applicant’s secret detention:
“Unclassified evidence now in the public domain confirms that after being held in
Thailand for around eight months, on 4 December 2002, Mr Husayn was ‘rendered’
with another prisoner to a secret prison in Szymany, Poland. Mr Husayn was held in
Szymany for almost ten months before being transferred along with four other
prisoners to a then-secret CIA section of the US military base at Guantánamo Bay.
According to recent media reports, Mr Husayn was then held near Rabat, Morocco.
Mr Husayn arrived in Morocco in the spring of 2004. Between then and his second
rendition to Guantánamo Bay in September 2006, recent information has come to us
from a confidential and extremely reliable unclassified source, confirming that
Mr Husayn was held in a secret CIA prison in Lithuania. This information come from
the most credible sources inside the United States, and is not subject to doubt.
We need hardly remind you of Lithuania’s duty to seriously investigate these
allegations, and the importance of the preliminary work done by journalists and other
fact-finders who protect their sources, in the exposure of US abuses on European
soil.”
192. Mr Darius Raulušaitis, Deputy Prosecutor General, responded on
27 September 2010, explaining that the ongoing investigation already
included the crimes allegedly committed against Abu Zubaydah:
“[D]uring the pre-trial investigation not only were the circumstances related to
abuse of official position with major legal significance (which was why the pre-trial
investigation was initiated) investigated, but also the circumstances which define
other criminal acts of which possible individual signs may be seen during the pre-trial
investigation. Among such criminal acts are those you have pointed out should also be
mentioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) as
well as illegal transportation of people across national borders (Article 292 of the
Criminal Code). Considering the fact that the pre-trial investigation in relation to the
circumstances provided in your application is already being conducted, please be
advised that the circumstances provided in your application will be considered when
performing the said pre-trial investigation No. 01-2-00016-10.”
193. Mr Raulušaitis asked Reprieve to submit all written information in
their possession, which would establish Abu Zubaydah’s presence in
Lithuania in the context of the CIA detention, interrogation and rendition
programme and to indicate the “confidential and extremely reliable
unclassified source” of information relied on by them.
194. Reprieve replied on 18 November 2010. Their letter (referring to
the applicant as “Mr Husayn” or “Mr Zubaydah”), in so far as relevant, read
as follows.
As regards the provision of information:
“As you are likely aware, there are substantial obstacles to obtaining and providing
this information to you. But we are working diligently to overcome them.
Mr Husayn’s communications are subject to U.S. government imposed restrictions
which require his U.S. counsel to submit all written communications from Mr Husayn
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
81
to a government censor. We are in the process of attempting to obtain a statement
from Mr Husayn that will provide evidence relevant to the questions submitted.
We previously recommended that, in addition, the Lithuanian authorities also
request from the US authorities that they be allowed to interview Mr Husayn
themselves, with counsel present. I note that a bilateral treaty provides your office
with
an agreed mechanism to seek independently such information from
Mr Zubaydah. I refer specifically to the Mutual Legal Assistance in Criminal Matters
Treaty between the United States and Lithuania, which entered into force on
26 August 1999. In addition to the testimony of Mr Zubaydah, you can seek to obtain
numerous additional sources of information relevant to your investigation, some of
which are listed below.”
As regards sources of evidence that the prosecutor should pursue as part
of a thorough investigation, Reprieve proposed that the prosecutor:
“1. Sought to obtain testimony of Abu Zubaydah, regarding the unlawful detention
and subjection to torture and inhuman, degrading treatment as well as the
circumstances connected with his transportation between other places of detention and
circumstances allowing the identification of the place where he was detained in the
Republic of Lithuania;
2. Sought to obtain testimony regarding the capture of Abu Zubaydah, place or
places of his detention, conditions in which he was detained, methods of his
interrogation used by CIA officers and other persons who had access to him, from
George Tenet (General Director of the CIA between 11 July 1997 and 11 July 2004);
John McLaughlin (acting General Director of the CIA between 11 July 2004 and
24 September 2004); Porter Goss (General Director of the CIA between 24 September
2004 and 30 May 2006); Michael Hayden (General Director of the CIA between
30 May 2006 and 12 February 2009) and Leon Panetta (current Director of the CIA)
as well as from other persons cooperating with CIA officers within the territory of the
Republic of Lithuania and persons possessing knowledge about their activities;
3. Sought to obtain evidence from national and international repositories of aviation
and flight data, including Eurocontrol and SITA, regarding flights into and out of
Lithuania during this period by the following planes mentioned in the public record:
N787WH, N733MA, N8213G, N88ZL, N961BW, N1HC and N63MU. In particular,
please inform me whether you have sought to obtain records regarding the flights of
a. a plane registered as N961BW on or about 2 January 2005
b. a plane registered as N787WH on or about 18 February 2005
c. a plane registered as N733MA on or about 25 March 2006
d. a plane registered as N63MU on or about 28 July 2005, probably
arriving at Vilnius Airport from Kabul;
e. Any other suspicious flights during the relevant time period;
4. Sought to obtain evidence from the sites of the alleged prisons and their environs,
including eyewitness testimony, forensic testimony and testimony of potential key
witnesses including employees at those sites during the period in question; and to this
end required the preservation of evidence on the two identified sites, including traces
of blood, hair and other biological specimens that would enable the prosecutor to
identify the victims and perpetrators;
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
5. Sought to obtain testimony from the companies involved in flights into and out of
Lithuania during this period by the planes discussed in the Committee’s findings,
including those who took part in trip planning, ground handling, refuelling, trash
disposal and other services.
6. Sought to obtain testimony on flight routes and cargo, human and otherwise,
from captain and crew flight into and out of Lithuania during this period by the planes
mentioned above;
7. Sought to obtain testimony concerning conditions of confinement at CIA black
sites from Geoff Loane and other authors of the International Committee of the Red
Cross Report on the treatment of the fourteen high-value detainees in CIA custody
dated 14 February 2007;
8. Sought to obtain testimony from key witnesses from Lithuanian state institutions,
regarding cooperation with the USA in the ‘War on terror’ during the period in
question, including former [Minister of National Defence] Gediminas Kirkilas, former
President [of the Republic] Valdas Adamkus, former [Minister of the Interior]
Virgilijus Bulovas, former [Minister of the Interior] Gintaras Furmanavičius, former
[Minister of Foreign Affairs] Antanas Valionis, former [Minister of National Defence]
Linas Linkevičius, former Deputy Director [of the] State Security Department Darius
Jurgelevičius,
former [Deputy Director] for Intelligence for State Security
[Department] Dainius Dabašinskas, former [Minister of Foreign Affairs] Vygaudas
Ušackas, President [of the Republic] Dalia Grybauskaitė, Prime Minister Andrius
Kubilius; [Dainius] Žalimas, legal adviser to the Lithuanian [Ministry of National
Defence].”
Reprieve also requested information about the progress of the
investigation.
195. On 13 January 2011 the prosecutor refused Reprieve’s request, on
the basis that Reprieve was “not a party to the proceedings [with] the right
to examine the material of the pre-trial investigation”. The prosecutor also
noted that, in accordance with Article 177 § 1 of the Code of Criminal
Procedure, the material of the pre-trial investigation was not public.
196. On 14 January 2011 the prosecutor discontinued the pre-trial
investigation No. 01-2-00016-10 on the ground that “no action/inaction had
been committed which constituted evidence of a criminal offence or a
criminal misdemeanour.” The decision was based on Articles 3 § 1 (1),
212 § 1, 214 and 216 of the Code of Criminal Procedure.
197. The decision stated that in the course of the pre-trial investigation
the persons questioned had been those relevant to the subject matter of the
investigation and possessing significant information for the resolution of the
case. Documents essential for the pre-trial investigation were obtained, and
information and premises inspected: these were referred to in the CNSD
Findings as Project No. 1 and Project No. 2. For the prosecutor, the totality
of the information obtained in the course of the pre-trial investigation was
sufficient to reach a conclusion and to adopt a procedural decision. It was
also noted that a large part of the information obtained in the course of the
investigation was to be treated as classified, because it constituted State or
official secrets. Accordingly, such information was not discussed in the
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
83
report in detail, and the document was restricted to the presentation of the
grounds on which the procedural decision was based.
Lastly, the prosecutor observed that in the context of the pre-trial
investigation he had examined not only material related to alleged abuse of
office, but also whether there was evidence of any other criminal offences in
connection with the matters investigated.
198. As regards the arrival of the United States CIA aircraft in Lithuania
and departure therefrom, the access the United States officials had to the
aircraft and the inspection of goods and passengers on the aircraft, the
prosecutor found:
“In the course of the pre-trial investigation it has been established that the aircraft
linked with the United States Central Intelligence Agency did arrive in and depart
from the Republic of Lithuania. It has also been established that on some occasions
Customs and State Border Protection Service inspections ... were not carried out.
However, on every occasion such actions were taken in accordance with the
procedure stipulated by the Law on Intelligence [Article 9] and the appropriate airport
and State Border Protection Service officials had been advised in advance in writing
(or verbally) [that SSD officials would meet the aircraft and the goods]. This was
confirmed by the documents in the case file which were provided by the SSD, and
also by witnesses who have been questioned – airport staff and officials of the SBGS
and the SSD. ... It should be noted that Article 16 of the Law on Intelligence stipulates
that State institutions and officials are not allowed to interfere with or otherwise
influence intelligence activities carried out by intelligence officers. Official vehicles
of intelligence staff may not be inspected without the permission of the Prosecutor
General.
No data have been obtained in the course of the pre-trial investigation indicating that
the aforementioned aircraft were used to illegally bring or remove any persons [to and
from Lithuanian territory]. On the contrary, those questioned in the course of the
investigation either categorically denied this or stated that they did not have any
information in that regard. Obviously, given that no inspection of the aircraft or the
motor vehicles used by the intelligence officers had been carried out, this possibility,
which is exceptionally theoretical, does remain (and it was so stated in the
Parliament’s CNSD Findings). However, there is no factual evidence to suggest that
actions of such a nature (illegal transportation of persons) took place. Therefore, an
assertion that the aircraft linked with the United States Central Intelligence Agency
was used to transport or to bring to the territory of the Republic of Lithuania (or to
remove from it) individuals detained by the CIA, from the point of view of criminal
law is a hypothesis which is not supported by factual evidence. Such a hypothesis is of
the same value as a hypothesis that any other persons or goods of restricted circulation
were transported. In the absence of factual information to support this hypothesis, it is
not possible to bring criminal charges or to continue criminal proceedings in this
respect. To reach the opposite conclusion would require specific information, which
could allow a finding that a criminal offence has been committed. ... As has been
stated, no such information is available about any possibly criminal offences at the
time of this procedural decision.
Accordingly, it must be concluded that the SSD officers, who sought and obtained
uninterrupted access to the airports’ territory where the [CIA] aircraft had landed, had
acted in a lawful manner and had not abused their office or exceeded the limits of
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their authority and, consequently, did not commit the criminal offence stipulated in
Article 228 of the Criminal Code [abuse of office].
Having concluded that there is no information about illegal transportation of persons
on board aircraft linked to the United States Central Intelligence Agency, it should
also be stated that there are no grounds to bring criminal charges pursuant to
Article 291 (unlawful crossing of a State border) or Article 292 (unlawful carrying of
persons over a State border).”
199. Regarding the construction and operation of alleged secret prisons
(Projects No. 1 and No. 2), the prosecutor stated that:
“In the course of the pre-trial investigation it was established that the SSD of the
Republic of Lithuania, together with the CIA of the United States of America,
implemented, in 2002, Project No. 1, referred to in the CNSD Findings, and in 2004
implemented Project No. 2, referred in the CNSD Findings. Both projects had been
related to the reconstruction and outfitting of the buildings.
... The statute of limitations on any alleged abuse of office violations, which was the
subject of the investigation, meant that no prosecution was possible for violations in
relation to Project No. 1.
Nevertheless, regardless of this procedural impediment to the pre-trial investigation,
it should also be noted that in the course thereof no unequivocal information was
obtained to the effect that when implementing Project No. 1 the premises were
outfitted specifically for the purpose of incarcerating detained persons. Factual
information received about specific aspects of the premises (which allows the
hypothesis that it was possible to keep a detained person there), when appraised
together with the evidence that supports other (different) designations of the premises,
and taking into account the fact that there is no information available that [any]
detained persons had in fact been taken to or kept in those premises, does not provide
a sufficient basis to charge a person with abuse of office and to pursue criminal
proceedings.
As to Project No. 2, in the course of the pre-trial investigation no data was received
to suggest that this project was used for keeping detained persons. To the contrary, the
factual information and the testimony of all the witnesses support other purposes and
use of the building, while the circumstances referred to in the [CNSD] Findings that
‘the layout of the building, its enclosed nature and protection of the perimeter as well
as the sporadic presence of the SSD staff in the premises allowed for actions to be
taken by officers of the partners without being monitored by the SSD, and also
allowed them to use the infrastructure at their discretion’ do not create a basis for
criminal charges and merely confirm that cooperation between the SSD and the CIA
took place and that the building served other purposes. The real purpose of the
building may not be revealed, as it constitutes a State secret.
It should be concluded that by the joint implementation of Project No. 1 and Project
No. 2 by the SSD and the CIA a criminal offence under Article 228 of the Criminal
Code [abuse of office] has not been committed.
[Moreover], even without restricting oneself merely to legal appraisal of the
potentially criminal actions suggested at the beginning of the pre-trial investigation
and its qualification in accordance with Article 288 of the Criminal Code, it should be
noted that there are no grounds to bring criminal charges in accordance with
Articles 100 (treatment of people prohibited by international law) or 146 (unlawful
restriction of liberty), because, as has already been mentioned, during the pre-trial
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
85
investigation no information was obtained about unlawful transportation of persons,
their detention, arrest or other unlawful restriction of their liberty. ...
This decision to terminate the pre-trial investigation also gives the answer to the
statement by Reprieve, received by the Office of the Prosecutor General of the
Republic of Lithuania on 20 September 2010. The statement presented a version of
events according to which the officers of the United States Central Intelligence
Agency between spring 2004 and September 2006 conveyed a detained person, [Abu
Zubaydah], to the Republic of Lithuania, detained him in Lithuania and removed him
from there. Reprieve did not provide any factual information to support this, no source
of information has been provided or revealed, and in the course of the pre-trial
investigation, as has been noted, no information was received about illegal
transportation of anyone, including [Abu Zubaydah], into or out of the Republic of
Lithuania by the United States Central Intelligence Agency.”
200. On the question whether the leadership of the SSD had kept the
highest officials of the State informed about the objectives and the content
of Project No. 1 and Project No. 2, the prosecutor found:
“As has been correctly stated in the [CNSD] Findings, the legal basis for the
international cooperation of the SSD is stipulated in the Law on Intelligence, and there
is no requirement in law for the directions (or tasks) relating to international
cooperation to ‘be cleared’ at any political level (at the State Defence Council or the
National Security and Defence Committee [of the Seimas]). The directions to be
followed or tasks to be undertaken emerged from a general need for international
cooperation and from direct contacts between the SSD and the special services of
other countries. In the joint implementation of Project No. 1 and Project No. 2 by the
SSD of the Republic of Lithuania together with the CIA of the United States of
America, the leadership of the SSD at that time did not advise any high-level official
of the State about the objectives and the content of these projects.
Having concluded that the law does not stipulate a duty to supply this information,
and also taking into account that this information, because of its scope, may be and
should be shared on a ‘need to know’ basis, it follows that in this part [of the
investigation] too there is no evidence of a criminal offence or abuse of office. ...
When summing up the information gathered in the course of the pre-trial
investigation, it has to be stated that all necessary and sufficient measures and
possibilities had been exhausted to collect information on any criminal offences
committed. However, in the course of the pre-trial investigation no objective data was
gathered which would confirm that there had been abuse of office (or another criminal
offence) and the totality of the factual information is not sufficient to find that
criminal offences were committed. Therefore, at the present time it is not possible to
conclude that criminal offences were committed. On the contrary, the hypothetical
suppositions which were the basis for the pre-trial investigation [on the charges of
abuse of office, Article 228 of the Criminal Code] have not been confirmed, and have
been ruled out of evidence. Article 3 § 1 (1) of the Code of Criminal Procedure
stipulates that criminal proceedings may not be started, and if they have been started
they must be terminated, where there is no indication of a criminal offence or a
criminal misdemeanour. Therefore, this pre-trial investigation No. 01-2-00016-10
must be discontinued, because there is nothing to indicate that there has been a
criminal offence or misdemeanour.
It has already been concluded that, to summarise the factual information contained
in the material of the pre-trial investigation about the cooperation between the SSD
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and the United States Central Intelligence Agency in Project No. 1 and Project No. 2,
no criminal offence has been committed as regards provision of information to the
highest officials of the State. However, there is sufficient evidence to find that actions
of the former chief executives of the SSD who had coordinated the cooperation
between the SSD and the United States Central Intelligence Agency and of those who
took part in that cooperation, Mečys Laurinkus, Arvydas Pocius and Dainius
Dabašinskas, as well as actions of the chief executives of the SSD and its other staff
who were in charge of the reconstruction of the premises (Project No. 1 and Project
No. 2), who initiated this reconstruction and who carried out this reconstruction, may
warrant action for disciplinary offences. However, the former chief executives of the
SSD, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, are no longer
employed by the SSD and [thus] no disciplinary sanctions may be applied to them. In
addition, in accordance with the Statute of the SSD ..., no disciplinary sanction may
be applied where more than one year has elapsed from the date of the offence.
Therefore, even in cases where there is information which may indicate that a
disciplinary offence has been committed, no decision can be made; this is stipulated
by the Code of Criminal Procedure, Article 214 § 6. The matter must be transferred to
other authorities for examination of a disciplinary offence after the pre-trial
investigation is complete. ...
Taking into account the fact that the material of the pre-trial investigation includes
both a State secret and an official secret, all the material of the investigation, after the
pre-trial investigation is complete, shall be passed on to the Office of the Prosecutor
General of the Republic of Lithuania, the Department of Information Security and the
Inspectorate of Operational Activities.”
201. Following
the
prosecutor’s
decision
to
discontinue
the
investigation, Reprieve twice wrote to the prosecutor seeking information
on Abu Zubaydah’s behalf. On 22 June 2011 Reprieve requested a copy of
the decision to discontinue the investigation, and also asked for information
on the rights available to Abu Zubaydah as a victim of the crimes covered
by the investigation. On 27 June 2011 Reprieve requested the Prosecutor
General to provide the following:
“(1) indicate with reference to provisions of the Criminal Code of the Republic of
Lithuania
which
crimes
were
investigated
within
pre-trial
investigation
No. 01-2-00016-10;
(2) indicate chronologically all the procedural actions taken during the pre-trial
investigation;
(3) state the findings of the investigation with respect to each crime; and
(4) state on what basis the investigation was closed in respect of each of the
crimes.”
The Prosecutor General’s Office did not respond to either letter.
202. In the meantime, in May 2011, Amnesty International had also
written to the Prosecutor General, stating that in its view the investigation
had failed to investigate thoroughly the allegations of torture, ill-treatment
and enforced disappearance, and that information already in the public
domain constituted a strong prima facie case for continuation of the
investigation: the secret sites had been identified; the SSD officials had
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
87
acknowledged that the sites had been established in order for suspected
terrorists to be detained there; both parliamentarians and the European
Committee for the Prevention of Torture (“the CPT”) in a report on its visit
to Lithuania on 14-18 June 2010 (“the 2011 CPT Report”; see also
paragraphs 347-351 below) had stated that the physical layout of the sites
and the operational dynamic (no inspections of aircraft had been conducted
and the CIA had had ultimate control over the sites) had been easily
adaptable to a detention regime; at least one aircraft had carried passengers
in addition to the crew.
203. In June 2011, the Prosecutor General responded to Amnesty
International’s letter, characterising it as a “complaint about the termination
of the investigation” and stating that the organisation had no right to submit
such a complaint, as it was not a party to the proceedings. He further stated
that, as to the substance, he did not find a basis for reopening the
investigation.
204. On 6 October 2011 Reprieve again wrote to the Prosecutor General,
submitting that new evidence had emerged and asking him to take action in
that respect.
The letter, in so far as relevant, read as follows:
“Compelling new information that has now come to light about the landings of CIA
connected planes in Lithuania makes a rigorous and wide-ranging investigation all the
more urgent. It has become obvious that previous efforts to chart the extent of the
CIA,s rendition operations in Europe have only revealed the tip of the iceberg.
As you will be aware, we have recently presented some new data, connecting
Morocco and Lithuania, in Amnesty International’s report ‘Unlock the Truth in
Lithuania: Investigate Secret Prisons Now’ (published 29 Sept. 2011). The data
concerns a Boeing 727, N724CL, which flew from Morocco to Vilnius via Amman,
Jordan, arriving in Vilnius International Airport on the evening of 17 February 2005.
It stayed briefly in Vilnius before departing for Iceland, and then returned through
Canada to the USA. The flight coincides with that of another plane, N787WH, which
landed in Palanga on 18 February 2005, coming from Bucharest. We have adduced
that the timing of these flights matches the timing associated, in public source
accounts, with the transfer of Zayn al-Abidin Muhammad Husayn (Abu Zubaydah)
from secret detention in Morocco to secret detention in Lithuania.
With this letter we enclose, for your attention, two documents relating to the arrival
of N724CL in Vilnius: a disclosure from the Lithuanian Civil Aviation Authority,
dated 20 June 2011, and a disclosure from Vilnius Airport, received on 19 Sept. 2011.
We note that there are some discrepancies in the times recorded on the documents, but
that aside from these they are in agreement. We have prepared an additional dossier of
confidential material with relation to this flight, which we will forward to you on
receipt of an undertaking that you will maintain its strict confidentiality.
...
We also note that the route of the other plane, N787WH between 14 and
19 February 2005, although partly disclosed in the course of the Seimas inquiry of
2009, is yet to be fully accounted for. In particular, it has not been disclosed where
this plane stopped before Bucharest.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
...
We are continuing actively to investigate these and other flights, and we believe that
further new information will come to light in the near future. It is clear, however, that
the full truth concerning these flights will not properly emerge until all responsible
bodies in all connected countries search diligently through the material available to
them.”
Reprieve asked the prosecutor to take specific additional investigative
actions, in particular to obtain from Eurocontrol, relevant national bodies
regulating air navigation, landing, servicing and customs data relating to the
route planning and route costing of N787WH between 14 and 19 February
2005 and N724CL between 14 and 19 February 2005.
205. On 21 October 2011 the Prosecutor General announced that he
would not reopen the terminated criminal investigation. This decision was
taken on the basis that there was no evidence that anyone had been detained
on Lithuanian territory.
206. On an unspecified date in January 2015 Reprieve filed with the
Prosecutor General’s Office the 2015 Reprieve Briefing (see also
paragraph 118 above and paragraph 395 below).
2. Reopening of the investigation on 22 January 2015 and further
proceedings
207. On 22 January 2015, having regard to the declassified 2014 US
Senate Committee Report, the prosecutor decided to quash the decision of
14 January 2011 and to re-open the investigation No. 01-2-00016-10 under
Article 228 §1 (abuse of office) of the Criminal Code. The decision, in so
far as relevant read as follows:
“The decision of 14 January 2011 is annulled and the pre-trial investigation
No. 01-2-00016-10 is reopened.
In accordance with Article 217 § 2 of the Code of Criminal Procedure (hereinafter
referred to as CCP), a pre-trial investigation might be reopened where essential
circumstances, which are relevant for a fair resolution of a case and which were not
known at the moment of discontinuation of a pre-trial emerge.
US Senate published a redacted report on activities of CIA prisons on 9 December
2014. Though the report does not refer to particular countries where secret CIA
detention centres were present, it refers to the ‘Violet’ centre where the citizen of
Saudi Arabia Mustafa al-Hawsawi was detained.
In regard to the alleged illegal transportation of this person to Lithuania on
13 February 2014 the Prosecutor General’s Office opened the pre-trial investigation
[under Article 292 the CC], which to date is still in progress.
The data contained in the published Report of US Senate of 9 December 2014 to be
considered
as a ground to reopen the discontinued pre-trial investigation
No. 01-2-00016-10 within the meaning of Article 217 § 2 of the CCP.
Taking into consideration the content of the information, some coincidences of this
information with the data provided in the conclusions of the parliamentary inquiry
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
89
carried out by the CNSD on the alleged transportation and confinement of persons
detained by CIA in the territory of the Republic of Lithuania and with the
subject-matter of the pre-trial investigation No. 01-2-200016-10, it is necessary to re-
evaluate importance of the newly emerged data by procedural means in order achieve
the purpose of the criminal process as it is indicated under Article 1 § 1 of CCP.”
208. On 6 February 2015 the investigation was joined with investigation
No. 01-2-000-15-14 concerning Mr Mustafa Ahmed al-Hawsawi and
unlawful transportation of persons across the State border, an offence
defined in Article 292 of the Criminal Code.
209. In the case of Mr al-Hawsawi, on 27 January 2015, the Prosecutor
General’s Office had asked the Cracow Prosecutor of Appeal in Poland for
legal assistance in relation to the alleged unlawful transportation of
Mr Mustafa Ahmed al-Hawsawi or other persons across the Lithuanian
State border.
210. On 29 May 2015 the Prosecutor General’s Office asked the
Prosecutor’s Office attached to the Court of Cassation in Romania for legal
assistance. Subsequently, requests for legal assistance were also sent to the
US authorities, Morocco and Afghanistan. The US authorities, having been
addressed twice, replied that they could not provide the information
requested. Morocco refused the request.
211. The proceedings are still pending.
V. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Republic of Lithuania
212. The relevant provisions read as follows:
Article 20
“Human liberty shall be inviolable.
No one may be arbitrarily apprehended or detained. No one may be deprived of his
liberty otherwise than on the grounds and according to the procedures established by
law. No one may be arbitrarily detained or held arrested. No one may be deprived of
his freedom otherwise than on the grounds and according to the procedures which
have been established by law.
...”
Article 21
“The person of the human being shall be inviolable.
The dignity of the human being shall be protected by law.
It shall be prohibited to torture, injure a human being, degrade his dignity, subject
him to cruel treatment as well as to establish such punishments.
No one may be subjected to scientific or medical experimentation without his
knowledge and free consent.”
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Article 22
“The private life shall be inviolable.
Personal correspondence, telephone conversations, telegraph messages, and other
communications shall be inviolable.
Information concerning the private life of a person may be collected only upon a
justified court decision and only according to the law.
The law and the court shall protect everyone from arbitrary or unlawful interference
in his private and family life, and from encroachment upon his honour and dignity.”
Article 30
“A person whose constitutional rights or freedoms are violated shall have the right
to apply to court.
Compensation for material and moral damage inflicted upon a person shall be
established by law.”
Article 118
“A pre-trial investigation shall be organised and directed, and charges on behalf of
the State in criminal cases shall be upheld, by a prosecutor.
In cases established by law, the prosecutor shall defend the rights and legitimate
interests of the person, society and the State.
When performing his functions, the prosecutor shall be independent and shall obey
only the law.
...”
B. Criminal Code
213. The Criminal Code, which was adopted in 2000 and, with certain
amendments, came into force on 1 May 2003, has undergone numerous
modifications. Its provisions at the relevant time read as follows:
Article 95
Statute of Limitations of Judgment of Conviction
“...
5. The following crimes provided for in this Code shall have no statute of
1
limitations :
2) treatment of persons prohibited under international law (Article 100);
...”
1. As of 29 June 2010, this provision is in Article 95 § 8 of the Criminal Code.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
91
Article 100 (as in force until 30 March 2011)
Treatment of Persons Prohibited under International Law
“A person who intentionally, by carrying out or supporting the policy of the State or
an organisation, attacks civilians on a large scale or in a systematic way and commits
their killing or causes serious impairment to their health; inflicts on them such
conditions of life as to bring about their death; engages in trafficking in human beings;
commits deportation of the population; tortures, rapes, involves another in sexual
slavery, forces someone to engage in prostitution, forcibly inseminates or sterilises a
person; persecutes any group or community of persons for political, racial, national,
ethnic, cultural, religious, sexual or other reasons prohibited under international law;
detains, arrests or otherwise deprives a person of liberty, where such a deprivation of
liberty is not recognised, or fails to report the fate or whereabouts of a person; or
carries out the policy of apartheid;
shall be punished by imprisonment for a term of five to twenty years or by life
imprisonment.”
Article 146
Unlawful Deprivation of Liberty
“1. A person who unlawfully deprives a person of his liberty, in the absence of
characteristics of hostage taking,
shall be punished by a fine or by arrest or by imprisonment for a term of up to three
years.
2. A person who commits the act provided for in paragraph 1 of this Article by
using violence or posing a threat to the victim’s life or health or by holding the victim
in captivity for a period exceeding 48 hours
shall be punished by arrest or by imprisonment for a term of up to four years.
3. A person who unlawfully deprives a person of his liberty by committing him to a
psychiatric hospital for reasons other than an illness
shall be punished by arrest or by imprisonment for a term of up to five years.”
Article 228 (as in force until 20 July 2007)
Abuse of Office
“l. A civil servant or a person equivalent thereto who abuses his official position or
exceeds his powers, where this incurs major damage to the State, an international
public organisation, a legal or natural person,
shall be punished by deprivation of the right to be employed in a certain position or
to engage in a certain type of activities or by a fine or by arrest or by imprisonment for
a term of up to four years.
2. A person who commits the act provided for in paragraph 1 of this Article seeking
material or another personal gain, in the absence of characteristics of bribery,
shall be punished by deprivation of the right to be employed in a certain position or
to engage in a certain type of activities or by imprisonment for a term of up to
six years.”
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Article 291
Illegal Crossing of the State Border
“1. A person who illegally crosses the State border of the Republic of Lithuania
shall be punished by a fine or by arrest or by imprisonment for a term of up to two
years.
2. An alien who unlawfully enters the Republic of Lithuania seeking to exercise the
right of asylum shall be released from criminal liability under paragraph 1 of this
Article.
3. An alien who commits the act provided for in paragraph 1 of this Article with the
intent of illegally crossing into a third State from the Republic of Lithuania shall be
released from criminal liability according to paragraph 1 of this Article where he is, in
accordance with the established procedure, subject to deportation back to the State
from the territory whereof he illegally crosses the State border of the Republic of
Lithuania or to the State of which he is a citizen.”
Article 292
Unlawful Transportation of Persons across the State Border
“1. A person who unlawfully transports across the State border of the Republic of
Lithuania an alien not having a permanent place of residence in the Republic of
Lithuania or transports or conceals in the territory of the Republic of Lithuania such
an alien who has illegally crossed the State border of the Republic of Lithuania
shall be punished by a fine or by arrest or by imprisonment for a term of up to
six years.
2. A person who commits the acts provided for in paragraph 1 of this Article for
mercenary reasons or where this poses a threat to human life,
shall be punished by imprisonment for a term of up to eight years.
3. A person who organises the acts provided for in paragraph 1 of this Article
shall be punished by imprisonment for a term of four up to ten years.
4. A legal entity shall also be held liable for the acts provided for in this Article.”
C. Code of Criminal Procedure
214. The Code of Criminal Procedure, which was adopted in 2002 and
came into force on 1 May 2003, underwent numerous modifications. Its
provisions at the relevant time read as follows:
Article 1
The Purpose of the Criminal Procedure
“The purpose of the criminal procedure is to quickly and comprehensively detect
criminal acts and to apply the law correctly when protecting human rights and rights
of citizens, so that the person who committed the criminal act is justly punished and
an innocent person is not convicted.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
93
Article 2
Duty to Detect Criminal Acts
“In every case where elements of a criminal offence are discovered, the prosecutor
or the institutions of pre-trial investigation must, within the limits of their competence,
take all measures provided by law to investigate and uncover the crime within the
shortest time possible.”
Article 3
Circumstances when the criminal proceedings are not possible (as in force until
5 December 2017)
“1. Criminal proceedings may not be instituted, and, if instituted, must be
terminated in the following cases:
1) where no act containing elements of a serious or grave crime was committed;
2) where the period of limitation for criminal liability has expired;
...”
Article 28 (as effective until 1 March 2016)
Victim
“1. The person who, as a result of a crime, sustained physical, pecuniary or non-
pecuniary damage, shall be recognised as the victim. The person shall be recognised
as the victim by an order of a prosecutor or a pre-trial investigation officer or by a
court decision.
2. The victim and his representative shall be entitled: to adduce evidence, make
motions, make challenges, examine the case file in the course of the pre-trial
investigation and at court, take part in the court hearing, appeal against the actions of
a pre-trial investigation officer, a prosecutor, a pre-trial investigation judge and the
court, to appeal against the court’s judgment or decision, and to present the closing
statements.
3. The victim must testify. He shall take an oath and be held responsible for
committing perjury in the same manner as a witness.”
Article 47
Defence counsel
“1. Defence counsel must be an advocate. The same advocate may not act as a
counsel for the defence for two or more persons where the interests of the defence of
one such person are against the interests of defence of another person.
2. A trainee advocate may act as a counsel for the defence upon instructions of the
advocate, provided there is no objection from the defended person. A trainee advocate
may not take part in the trial involving a serious or grave criminal offence.
3. One person may have several counsels for the defence. Where the suspect or the
accused has several counsels for the defence and where at least one of them is present,
proceedings may continue.”
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Article 55
2
Authorised representatives
“1. The representative of a victim ... shall be a person who provides legal assistance
to th[is] part[y] to the proceedings, protects [his] rights and lawful interests.
2. The representative of a victim ... shall be an advocate or a trainee advocate under
the advocate’s instruction, and, subject to leave granted by the pre-trial investigation
officer, the prosecutor or the judge, or any other person with a university degree in
law, whom a party to the proceedings has instructed to represent his interests. ...
3. The representative of the victim ... shall be permitted to participate in the
proceedings from the moment the pre-trial investigation officer or the prosecutor takes
such a decision, or a court adopts such a ruling. The representative may participate in
the proceedings together with the person he represents or on his behalf, except when
representing a victim. The represented person may, at any moment, waive the right to
have a representative or choose another representative.
4. In cases set out in laws governing the provisions of the State-guaranteed legal aid,
the victim ... is entitled to receive the State-guaranteed legal assistance.”
Article 62
Complaint against the procedural actions and decisions of the pre-trial investigation
officer
“1. Parties to the proceedings may lodge complaints against the procedural actions
and decisions of the pre-trial investigation officer with the prosecutor supervising the
activities of that officer. In the event that the complaint is dismissed by the prosecutor,
his decision may be complained of to a higher prosecutor, pursuant to the rules set out
in Article 63 of this Code.
2. The complaint shall be lodged directly with the prosecutor or through the pre-
trial investigation officer against whose procedural actions or decisions a complaint is
being lodged. Complaints may be made both orally and in writing. The pre-trial
investigation officer or the prosecutor shall enter oral complaints in a record which
shall be signed by the complainant and the pre-trial investigation officer or the
prosecutor who receives the complaint.
3. The pre-trial investigation officer must, within one day, transmit the complaint
together with his written explanations to the prosecutor.
4. Lodging of a complaint pending its resolution shall not suspend the performance
of the action or implementation of the decision against which a complaint is being
lodged, save in the cases where the pre-trial investigation officer or the prosecutor
recognises that such a suspension is necessary.”
Article 63 (as effective until 2011)
Complaint against the procedural actions and decisions of the prosecutor
“1. The actions and decisions of the prosecutor in charge of the pre-trial
investigation may be appealed against to a higher prosecutor. If a higher prosecutor
dismisses the appeal, this decision may be appealed against to the pre-trial
investigation judge.
2. The wording of this Article was slightly different before 2010; it was again amended as
of 2015.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
95
2. The complaint shall be lodged directly with a higher prosecutor or through the
prosecutor against whose procedural steps or decisions the complaint is lodged. The
complaints may be made both orally and in writing. The prosecutor shall enter oral
complaints in the protocol which shall be signed by the complainant and the
prosecutor who receives the complaint.
3. The making of a complaint pending its resolution shall not suspend the
performance of the act or implementation of the decision against which a complaint is
being lodged, save in the cases where the prosecutor determines that such suspension
is necessary.”
Article 109
Civil claim in a criminal case
“A person who has sustained pecuniary or non-pecuniary damage due to a criminal
offence shall be entitled to bring a civil claim in a criminal case against the suspect or
the accused, or the persons who bear financial responsibility for the actions of the
suspect or the accused. The civil claim shall be heard by the court together with the
criminal case. When a civil claim has been brought at the stage of the pre-trial
investigation, data regarding the basis and amount of civil claim must be gathered
during the pre-trial investigation3.”
Article 110
Civil claimant
“1. A natural or a legal person who requests, in a criminal case, compensation for
the pecuniary or non-pecuniary damage caused by the criminal offence committed by
the suspect or the accused shall be recognised as a civil claimant. The person shall be
recognised as a civil claimant by a decision of the pre-trial investigation officer, the
prosecutor or the court.
2. The civil claimant shall be entitled:
1) to submit explanations on the substance of a civil claim;
2) to provide evidence;
3) to make motions and challenges;
4) to examine, in the course of the pre-trial investigation and at court, the material
in the case file, to have extracts or copies of the documents he needs made following
the established procedure;
5) to be present during the hearing at the court of the first instance;
6) to lodge complaints against the actions and to appeal against the decisions of the
pre-trial investigation officer, the prosecutor, the judge or the court to the extent they
are related to the civil action;
7) to be present when hearing of the case on appeal.
3. The civil claimant must:
1) when summoned, be present during the hearing of the case by the first instance
court;
3. The last sentence was added by the amendment effective as of 31 December 2011.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
2) submit, at the court’s request, documents in his possession which are relevant for
the claim brought;
3) observe the rules of procedure established by court.”
Article 166
Institution of pre-trial investigation
“1. Pre-trial investigation shall be instituted:
1) upon receipt of a complaint, application or report about a criminal act;
2) where the prosecutor or the pre-trial investigation officer himself has established
elements of a criminal act.
2. In cases established by this Code, pre-trial investigation shall be instituted only in
case where there is a victim’s complaint.
...”
Article 212 (effective as of 1 September 2011)
Discontinuing a pre-trial investigation
“A pre-trial investigation must be discontinued if:
1) it becomes evident that the circumstances provided for in Articl[e] 3 ... of this
Code exist;
...”
Article 214 (as in force until 1 March 2016)
The procedure for discontinuing a pre-trial investigation
“1. In cases established in Article 212 points 1 and 2 of this Code, a pre-trial
investigation is discontinued by a decision of a prosecutor or a ruling of a pre-trial
investigation judge.
...
3. The suspect, his or her representative, his or her lawyer, the victim, civil claimant
and their representatives are informed about the decision to discontinue the pre-trial
investigation or about the decision of the pre-trial investigation judge not to approve
the prosecutor’s decision to discontinue the pre-trial investigation, by sending them a
copy of the act.
4. The decision specified in paragraph 1 of this Article may be appealed against to a
higher prosecutor... If a higher prosecutor refuses to grant the appeal, such a decision
may be appealed against to a pre-trial investigation judge. Such a decision of a pre-
trial investigation judge ...
...
6. If the pre-trial investigation file contains information about an administrative law
violation or about another breach of the law, a prosecutor takes the decision to transfer
the material to be decided upon in administrative proceedings or according to another
procedure specified by law.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
97
Article 216 (as in force as of 11 December 2010)
The content of the decision to discontinue the pre-trial investigation
“1. The decision to discontinue the pre-trial investigation contains the description of
the crime, and the grounds and reasons for discontinuing the investigation.
...”
Article 217 (as in force as of 5 July 2011)
Reopening a pre-trial investigation which has been discontinued
“1. The prosecutor may re-open the pre-trial investigation upon complaints lodged
by the parties to the proceedings or on his own initiative, where there are grounds for
doing so. The pre-trial investigation shall be reopened by a decision of the prosecutor,
having quashed the decision to discontinue criminal proceedings.
2. A pre-trial investigation can be reopened upon the discovery of essential
circumstances which are relevant for the proper examination of the case and which
had not been established at the time of adopting the decision to discontinue the
investigation.
...
7. The suspect, his or her representative, his or her lawyer, the victim, civil claimant
and civil defendant, and their representatives are informed about the decision to
re-open the pre-trial investigation. These persons have a right to appeal against the
decision regarding the re-opening. The decision not to re-open criminal proceedings is
notified to the party to the criminal proceedings which had submitted a complaint; that
party may appeal against such a decision ...”
D. Civil Code
215. The relevant provisions of the Civil Code read as follows:
Article 6.246
Unlawful actions
“1. Civil liability shall arise from the non-performance of a duty established by law
or a contract (unlawful failure to act), or from the performance of actions that are
prohibited by law or by contract (unlawful action), or from the violation of the general
duty to behave with care.”
Article 6.263
Obligation to compensate for damage caused
“1. Every person shall have the duty to abide by the rules of conduct so as not to
cause damage to another by his actions (active actions or refrainment from acting).
2. Pecuniary loss resulting from any bodily or property damage caused to another
person and also, in cases established by the law, non-pecuniary damage must be fully
compensated by the person liable.
3. In cases established by law, a person shall also be liable to compensation for
damage caused by the actions of another person or caused by things in his
possession.”
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Article 6.271
Liability to compensation for damage caused by the unlawful action of public
authority institutions
“1. Damage caused by the unlawful action of a public authority institution must be
compensated by the State from the resources of the State budget, irrespective of any
fault on the part of a particular public servant or other employee of the public
authority institution. Damage caused by unlawful actions of municipal authority
institutions must be redressed by the municipality from its own budget, irrespective of
its employee’s fault.
2. For the purposes of this Article, the notion ‘public authority institution’ shall
mean any subject of public law (State or municipal institution, official, public servant
or any other employee of these institutions, etc.), as well as a private person
performing the functions of a public authority.
3. For the purposes of this Article, the notion ‘action’ shall mean any action (or
inaction) by a public authority institution or its employees that directly affects the
rights, liberties and interests of persons (legal acts or individual acts adopted by the
institutions of State and municipal authorities, administrative acts, physical acts, etc.,
with the exception of court judgments, verdicts in criminal cases, decisions in civil
and administrative cases and orders).
4. Civil liability of the State or municipality subject to this Article shall arise where
employees of public authority institutions fail to act in the manner prescribed by law
for these institutions and their employees.”
Article 6.272
Liability for damage caused by the unlawful actions of preliminary investigation
officials, prosecutors, judges and the courts
“1. Damage resulting either from unlawful conviction, unlawful arrest, as a
suppressive measure, application of unlawful procedural measures in enforcement
proceedings, or unlawful imposition of an administrative penalty (arrest) shall give
rise to full compensation by the State irrespective of the fault of the preliminary
investigation officials, prosecution officials or courts.
2. The State shall be liable for full compensation in respect of the damage caused
by the unlawful actions of a judge or a court trying a civil case, where the damage is
caused through the fault of the judge himself or of any other court official.
3. In addition to pecuniary damage, the aggrieved person shall be entitled to non-
pecuniary damage.
4. Where the damage arises from an intentional fault on the part of preliminary
investigation, prosecution or court officials or judges, the State, after compensation
has been provided, shall have the right to take action against the officials concerned
for recovery, under the procedure established by law, of the sums in question in the
amount provided for by the law.”
E. The Law on Intelligence
216. The Law on Intelligence, as effective between 2002 and 2012, read
as follows:
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Article 9
Intelligence tasks
“1. Intelligence tasks shall be set for subordinate intelligence institutions by the
Minister of National Defence and the Director of the State Security Department whilst
taking into account the main areas of the intelligence services’ activities, the
recommendations of the State Defence Council and the needs of international
cooperation.
2. Ministries and Governmental or other State institutions shall provide the
assistance necessary to pursue intelligence tasks.”
Article 16
Additional guarantees for intelligence officers
“1. State institutions, officials and civil servants shall be prohibited from
obstructing or otherwise influencing the intelligence activities pursued by intelligence
officers.
...
3. The State shall show concern for any intelligence officer or family members
thereof who become victims for reasons related to service in an intelligence institution
and shall provide assistance thereto.
4. The State shall compensate for the damage incurred to the intelligence officer or
his family member for reasons related to service at the intelligence institution.”
F. The Statute of the Seimas
217. The relevant provisions regarding the powers of the Seimas
committees read as follows.
Article 49 (as effective until 2013)
Powers of the Seimas Committees
“1. The Seimas committees shall have the following powers, within the scope of
their competence:
...
9) when performing the parliamentary control, to hear information and reports from
the Ministries and other State institutions concerning the execution of laws of the
Republic of Lithuania and other legal acts adopted by the Seimas; to perform, on their
own initiative or at the behest of the Seimas, parliamentary investigation into specific
problems and to provide the Seimas with their conclusions; to consider, on their own
initiative or at the behest of the Seimas, annual activity reports of State institutions
that are accountable to the Seimas and to provide the Seimas with their conclusions;
...”
Article 56 (as effective until 2013)
Powers of the Seimas Committees when Performing Parliamentary Control
“1. Committees are entitled, within their competence, to verify compliance with
laws, Seimas resolutions, or committee recommendations and proposals; to perform,
on their own initiative or at the behest of the Seimas, parliamentary investigations into
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specific problems; to consider, on their own initiative or at the behest of the Seimas,
annual reports of State institutions that are accountable to the Seimas;
...
3. The committees shall have the right to demand from the State institutions, except
courts, and from officials, any documents, written conclusions, reports and other
necessary material.
4. Committees, when performing parliamentary investigation at the behest of the
Seimas, shall act in compliance with the rules of procedure of Seimas control
commission or ad hoc investigation commissions, as set forth in Articles 75-76 of this
Statute, and shall have the same powers.”
Article 75
The Powers and Working Procedure of an Ad Hoc Control or Investigation
Commission
“1. If an issue is being examined which is relevant to a State secret, the meetings of
an Ad Hoc Control or Investigation Commission shall be closed to all persons except
those who have been invited thereto, of which a list shall be compiled in accordance
with the commission members’ wishes. In other instances the Ad Hoc Control or
Investigation Commission may hold closed meetings only upon receiving leave from
the Seimas.
2. The data collected in the course of the work of an Ad Hoc Control or
Investigation Commission, that is relevant to a State secret, shall not be published.
3. The law shall establish the powers of Ad Hoc Control and Investigation
Commissions.”
Article 76
Decisions of the Ad Hoc Control or Investigation Commission
“1. Having completed the assigned operation, the Ad Hoc Control or Investigation
Commission shall submit to the Seimas the collected and summarised data,
conclusions and prepared draft decision.
2. A resolution shall be passed at the Seimas sitting regarding the issue examined
by the Ad Hoc Control or Investigation Commission.
3. A Seimas resolution may express no confidence in the Government, Minister or
head of another State institution, who is appointed by the Seimas, or conclusions may
be presented regarding the proposed impeachment process.
4. In instances of no confidence, the requirements of Articles 218 or 222 of this
Statute shall be applied in order to pass a resolution.”
G. The Law on the Seimas Ad Hoc Investigation Commissions
218. Article 8 of the Law on the Seimas Ad Hoc Investigation
Commissions (“the Law on the Ad Hoc Investigation Commissions”)
regarding decisions of the Commission read, in so far as relevant, as
follows:
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101
“1. The results of the Commission’s investigation shall be presented in a draft
conclusion. It shall indicate the circumstances established in the course of the
investigation, evidence gathered and provide the legal assessment of the situation.
...”
H. The Constitutional Court’s case-law
219. The Constitutional Court’s ruling of 13 May 2004, concerning the
powers of the Seimas ad hoc investigation commissions and the nature of
parliamentary inquiries carried out by them, reads, in so far as relevant, as
follows:
“6. ... [u]nder paragraph 1 of Article 8 (wording of 3 April 2003) of the Law [on the
Seimas Ad Hoc Investigation Commissions], the draft conclusion of the Seimas ad
hoc investigation commission shall contain, inter alia, a legal assessment of the
situation.
One must pay attention to the fact that the Seimas ad hoc investigation commission
is neither an institution of pre-trial investigation, nor the prosecutor’s office, nor the
court. The formula ‘legal assessment’ is a general notion; it does not mean that the
Seimas ad
hoc investigation commission must or may present the legal
characterisation of the actions that it has investigated, of the decisions adopted by it
on the issues that it was assigned to investigate, or of other circumstances that were
elucidated by it, which are related to the investigated issue; that is to say, this formula
does not mean that the Seimas ad hoc investigation commission has to, or may,
indicate the compliance or non-compliance of the said actions, decisions or
circumstances with legal acts, but it means that the said actions and decisions must be
investigated, other circumstances related to the investigated question must be
elucidated and that the results of the Seimas ad hoc investigation commission’s
inquiry must be drawn up so that on their basis it might be possible to adopt legal
decisions – either to adopt respective legal acts or not to adopt them.
...
7. It needs to be emphasised that the conclusion (or some statements) of the Seimas
ad hoc investigation commission in itself directly does not give rise to any legal
effects for the persons indicated therein. Such effects could be caused to them only by
the decisions of other institutions or their officers, which may be adopted, while
taking into consideration the conclusion of the Seimas ad hoc investigation
commission.
...
9. ... It is clear that the Seimas is neither an institution of pre-trial investigation, nor
the prosecutor’s office, nor the court. Therefore, it needs to be underlined that the
formulation of the opinion or point of view of the Seimas regarding the conclusion of
the Seimas ad hoc investigation commission formed by it in a resolution of the Seimas
may not be construed, under the Constitution, as a legal characterisation of the actions
that the Seimas ad hoc investigation commission has investigated, of the decisions
adopted by it on the issues that it was assigned to investigate, and of other
circumstances that were elucidated by it. The Seimas, after it has decided either to
approve or not to approve the conclusion of the Seimas ad hoc investigation
commission, or to approve it in part (with reservations), does not adopt a decision on
the compliance of the said actions, decisions, and circumstances with legal acts, as is
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mandatory for other State institutions (including institutions of the pre-trial
investigation, the prosecutor’s office or courts), but it merely formulates its point of
view as to the conclusion of the Seimas ad hoc investigation commission that was
formed by it. The Seimas resolution in which the opinion and point of view of the
Seimas are formulated as to the conclusion of the Seimas ad hoc investigation
commission that was formed by it is not binding on institutions of pre-trial
investigation, the prosecutor’s office or the court.”
VI. RELEVANT INTERNATIONAL LAW
A. Vienna Convention on the Law of Treaties
220. Articles 26 and 27 of the Vienna Convention on the Law of
Treaties (23 May 1969), to which Lithuania is a party, provide as follows:
Article 26
“Pacta sunt servanda”
“Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.”
Article 27
Internal law and observance of treaties
“A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. ...”
B. International Covenant on Civil and Political Rights
221. Article 7 of the International Covenant on Civil and Political Rights
(“ICCPR”), to which Lithuania is a party, reads as follows:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.”
222. Article 10 § 1 of the ICCPR reads as follows:
“1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.”
C. The United Nations Torture Convention
223. One hundred and forty-nine States are parties to the 1984 United
Nations (“the UN”) Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (“UNCAT”), including all Member
States of the Council of Europe. Article 1 of the Convention defines torture
as:
“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
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103
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity. It does not include pain
or suffering arising only from, inherent in or incidental to lawful sanctions.”
224. Article 1(2) provides that it is without prejudice to any international
instrument or national legislation which does or may contain provisions of
wider application. Article 2 requires States to take effective legislative,
administrative, judicial or other measures to prevent acts of torture in any
territory under its jurisdiction. Article 4 requires each State Party to ensure
that all acts of torture are offences under its criminal law.
Article 3 provides:
“1. No State Party shall expel, return (‘refouler’) or extradite a person to another
State where there are substantial grounds for believing that he would be in danger of
being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where
applicable, the existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.”
225. Article 12 provides that each State Party shall ensure that its
competent authorities proceed to a prompt and impartial investigation,
wherever there is reasonable ground to believe that an act of torture has
been committed in any territory under its jurisdiction.
Article 15 requires that each State ensure that any statement which is
established to have been made as a result of torture shall not be invoked as
evidence in any proceedings, except against a person accused of torture as
evidence that the statement was made.
D. UN Geneva Conventions
1. Geneva (III) Convention
226. Article 4 of the Geneva (III) Convention relative to the Treatment
of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”),
which defines prisoners of war, reads, in so far as relevant, as follows:
“Prisoners of war, in the sense of the present Convention, are persons belonging to
one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of
militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including
those of organized resistance movements, belonging to a Party to the conflict and
operating in or outside their own territory, even if this territory is occupied, provided
that such militias or volunteer corps, including such organized resistance movements,
fulfil the following conditions:
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(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of
war.
(3) Members of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power.
...”
227. Article 5 states:
“The present Convention shall apply to the persons referred to in Article 4 from the
time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act
and having fallen into the hands of the enemy, belong to any of the categories
enumerated in Article 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent
tribunal.”
228. Article 13 reads:
“Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act
or omission by the Detaining Power causing death or seriously endangering the health
of a prisoner of war in its custody is prohibited, and will be regarded as a serious
breach of the present Convention. In particular, no prisoner of war may be subjected
to physical mutilation or to medical or scientific experiments of any kind which are
not justified by the medical, dental or hospital treatment of the prisoner concerned and
carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of
violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.”
229. Article 21 reads, in so far as relevant:
“The Detaining Power may subject prisoners of war to internment. It may impose on
them the obligation of not leaving, beyond certain limits, the camp where they are
interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to
the provisions of the present Convention relative to penal and disciplinary sanctions,
prisoners of war may not be held in close confinement except where necessary to
safeguard their health and then only during the continuation of the circumstances
which make such confinement necessary.”
2. Geneva (IV) Convention
230. Article 3 of the Geneva (IV) relative to the Protection of Civilian
Persons in Time of War of 12 August 1949 (“the Fourth Geneva
Convention”) reads, in so far as relevant, as follows:
“In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
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105
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”
231. Article 4 reads, in so far as relevant, as follows:
“Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands
of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it.
Nationals of a neutral State who find themselves in the territory of a belligerent State,
and nationals of a co-belligerent State, shall not be regarded as protected persons
while the State of which they are nationals has normal diplomatic representation in the
State in whose hands they are. ...”
E. International Law Commission, 2001 Articles on Responsibility of
States for Internationally Wrongful Acts
232. The relevant parts of the Articles (“the ILC Articles”), adopted on
3 August 2001 (Yearbook of the International Law Commission, 2001,
vol. II), read as follows:
Article l
Responsibility of a State for its internationally wrongful acts
“Every internationally wrongful act of a State entails the international responsibility
of that State.”
Article 2
Elements of an internationally wrongful act of a State
“There is an internationally wrongful act of a State when conduct consisting of an
action or omission:
a. Is attributable to the State under international law; and
b. Constitutes a breach of an international obligation of the State.”
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Article 7
Excess of authority or contravention of instructions
“The conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State under
international law if the organ, person or entity acts in that capacity, even if it exceeds
its authority or contravenes instructions.
...”
Article 14
Extension in time of the breach of an international obligation
“1. The breach of an international obligation by an act of a State not having a
continuing character occurs at the moment when the act is performed, even if its
effects continue.
2. The breach of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and remains
not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given
event occurs when the event occurs and extends over the entire period during which
the event continues and remains not in conformity with that obligation.”
Article 15
Breach consisting of a composite act
“1. The breach of an international obligation by a State through a series of actions
or omissions defined in aggregate as wrongful occurs when the action or omission
occurs which, taken with the other actions or omissions, is sufficient to constitute the
wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of
the actions or omissions of the series and lasts for as long as these actions or
omissions are repeated and remain not in conformity with the international
obligation.”
Article 16
Aid or assistance in the commission of an internationally wrongful act
“A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.”
F. UN General Assembly Resolution 60/147
233. The UN General Assembly’s Resolution 60/147 on Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law, adopted on 16 December 2005, reads, in
so far as relevant, as follows:
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107
“24. ... victims and their representatives should be entitled to seek and obtain
information on the causes leading to their victimization and on the causes and
conditions pertaining to the gross violations of international human rights law and
serious violations of international humanitarian law and to learn the truth in regard to
these violations”.
VII. SELECTED
PUBLIC
SOURCES
CONCERNING
GENERAL
KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING
CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY
OCCURRING IN US-RUN DETENTION FACILITIES IN THE
AFTERMATH OF 11 SEPTEMBER 2001
234. The applicant submitted a considerable number of reports and
opinions
of
international
governmental
and
non-governmental
organisations, as well as articles and reports published in media, which
raised concerns about alleged rendition, secret detentions and ill-treatment
of Al-Qaeda and Taliban detainees in US-run detention facilities in
Guantánamo and Afghanistan. A summary of most relevant sources is given
below.
A. United Nations Organisation
1. Statement of the UN High Commissioner for Human Rights on
detention of Taliban and Al-Qaeda prisoners at the US Base in
Guantánamo Bay, Cuba, 16 January 2002
235. The UN High Commissioner for Human Rights stated as follows:
“All persons detained in this context are entitled to the protection of international
human rights law and humanitarian law, in particular the relevant provisions of the
International Covenant on Civil and Political Rights (ICCPR) and the Geneva
Conventions of 1949. The legal status of the detainees and their entitlement to
prisoner-of-war (POW) status, if disputed, must be determined by a competent
tribunal, in accordance with the provisions of Article 5 of the Third Geneva
Convention. All detainees must at all times be treated humanely, consistent with the
provisions of the ICCPR and the Third Geneva Convention.”
2. Statement of the International Rehabilitation Council for Torture
236. In February 2003 the UN Commission on Human Rights received
reports from non-governmental organisations concerning ill-treatment of
US detainees. The International Rehabilitation Council for Torture (“the
IRCT”) submitted a statement in which it expressed its concern over the
United States’ reported use of “stress and duress” methods of interrogation,
as well as the contraventions of refoulement provisions in Article 3 of the
Convention Against Torture. The IRCT report criticised the failure of
governments to speak out clearly to condemn torture; and emphasised the
importance of redress for victims. The Commission on Human Rights
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communicated this document to the United Nations General Assembly on
8 August 2003.
3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006,
Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of
America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)
237. The UN Working Group found that the detention of the persons
concerned, held in facilities run by the United States secret services or
transferred, often by secretly run flights, to detention centres in countries
with which the United States authorities cooperated in their fight against
international terrorism, fell outside all national and international legal
regimes pertaining to the safeguards against arbitrary detention. In addition,
it found that the secrecy surrounding the detention and inter-State transfer of
suspected terrorists could expose the persons affected to torture, forced
disappearance and extrajudicial killing.
B. Parliamentary Assembly of the Council of Europe Resolution
no. 1340 (2003) on rights of persons held in the custody of the
United States in Afghanistan or Guantánamo Bay, 26 June 2003
238. The above resolution (“the 2003 PACE Resolution”) read, in so far
as relevant, as follows:
“1. The Parliamentary Assembly:
1.1. notes that some time after the cessation of international armed conflict in
Afghanistan, more than 600 combatants and non-combatants, including citizens from
member states of the Council of Europe, may still be held in United States’ military
custody – some in the Afghan conflict area, others having been transported to the
American facility in Guantánamo Bay (Cuba) and elsewhere, and that more
individuals have been arrested in other jurisdictions and taken to these facilities;
...
2. The Assembly is deeply concerned at the conditions of detention of these
persons, which it considers unacceptable as such, and it also believes that as their
status is undefined, their detention is consequently unlawful.
3. The United States refuses to treat captured persons as prisoners of war; instead it
designates them as “unlawful combatants” – a definition that is not contemplated by
international law.
4. The United States also refuses to authorise the status of individual prisoners to be
determined by a competent tribunal as provided for in Geneva Convention (III)
relative to the Treatment of Prisoners of War, which renders their continued detention
arbitrary.
5. The United States has failed to exercise its responsibility with regard to
international law to inform those prisoners of their right to contact their own consular
representatives or to allow detainees the right to legal counsel.
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109
6. Whatever protection may be offered by domestic law, the Assembly reminds the
Government of the United States that it is responsible under international law for the
well-being of prisoners in its custody.
7. The Assembly restates its constant opposition to the death penalty, a threat faced
by those prisoners in or outside the United States.
8. The Assembly expresses its disapproval that those held in detention may be
subject to trial by a military commission, thus receiving a different standard of justice
than United States nationals, which amounts to a serious violation of the right to
receive a fair trial and to an act of discrimination contrary to the United Nations
International Covenant on Civil and Political Rights.
9. In view of the above, the Assembly strongly urges the United States to:
9.1. bring conditions of detention into conformity with internationally recognised
legal standards, for instance by giving access to the International Committee of the
Red Cross (ICRC) and by following its recommendations;
9.2. recognise that under Article 4 of the Third Geneva Convention members of the
armed forces of a party to an international conflict, as well as members of militias or
volunteer corps forming part of such armed forces, are entitled to be granted prisoner
of war status;
9.3. allow the status of individual detainees to be determined on a case-by-case
basis, by a competent tribunal operating through due legal procedures, as envisaged
under Article 5 of the Third Geneva Convention, and to release non-combatants who
are not charged with crimes immediately.
10. The Assembly urges the United States to permit representatives of states which
have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by
independent observers, to have access to sites of detention and unimpeded
communication with detainees. ...
13. The Assembly further regrets that the United States is maintaining its
contradictory position, claiming on the one hand that Guantánamo Bay is fully within
US jurisdiction, but on the other, that it is outside the protection of the American
Constitution. In the event of the United States’ failure to take remedial actions before
the next part-session, or to ameliorate conditions of detention, the Assembly reserves
the right to issue appropriate recommendations.”
C. International non-governmental organisations
1. Amnesty International, Memorandum to the US Government on the
rights of people in US custody in Afghanistan and Guantánamo Bay,
April 2002
239. In this memorandum, Amnesty International expressed its concerns
that the US Government had transferred and held people in conditions that
might amount to cruel, inhuman or degrading treatment and that violated
other minimum standards relating to detention, and had refused to grant
people in its custody access to legal counsel and to the courts in order to
challenge the lawfulness of their detention.
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2. Human Rights Watch, “United States, Presumption of Guilt: Human
Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G),
August 2002
240. This report included the following passage:
“... the fight against terrorism launched by the United States after September 11 did
not include a vigorous affirmation of those freedoms. Instead, the country has
witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of
those directly affected have been non-U.S. citizens ... the Department of Justice has
subjected them to arbitrary detention, violated due process in legal proceedings
against them, and run roughshod over the presumption of innocence.”
3. Human Rights Watch, “United States: Reports of Torture of
Al-Qaeda Suspects”, 26 December 2002
241. This report referred to the Washington Post’s article: “U.S. Decries
Abuse but Defends Interrogations” which described “how persons held in
the CIA interrogation centre at Bagram air base in Afghanistan were being
subject to ‘stress and duress’ techniques, including ‘standing or kneeling for
hours’ and being ‘held in awkward, painful positions’.
It further stated:
“The Convention against Torture, which the United States has ratified, specifically
prohibits torture and mistreatment, as well as sending detainees to countries where
such practices are likely to occur.”
4. International
“Anti-terrorism
Helsinki
Measures,
Federation
Security
for
and
Human
Human
Rights,
Rights:
Developments in Europe, Central Asia and North America in the
Aftermath of September 11”, Report, April 2003
242. The relevant passage of this report read as follows:
“Many ‘special interest’ detainees have been held in solitary confinement or housed
with convicted prisoners, with restrictions on communications with family, friends
and lawyers, and have had inadequate access to facilities for exercise and for religious
observance, including facilities to comply with dietary requirements. Some told
human rights groups they were denied medical treatment and beaten by guards and
inmates.”
5. Amnesty International Report 2003 – United States of America,
28 May 2003
243. This report discussed the transfer of detainees to Guantánamo,
Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed,
shackled, made to wear mittens, surgical masks and ear muffs, and were
effectively blindfolded by the use of taped-over ski goggles”) and the
conditions of detention (“they were held without charge or trial or access to
courts, lawyers or relatives”). It further stated:
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111
“A number of suspected members of al-Qaeda reported to have been taken into US
custody continued to be held in undisclosed locations. The US government failed to
provide clarification on the whereabouts and legal status of those detained, or to
provide them with their rights under international law, including the right to inform
their families of their place of detention and the right of access to outside
representatives. An unknown number of detainees originally in US custody were
allegedly transferred to third countries, a situation which raised concern that the
suspects might face torture during interrogation.”
6. Amnesty International, “Unlawful detention of six men from Bosnia-
Herzegovina in Guantánamo Bay”, 29 May 2003
244. Amnesty International reported on the transfer of six Algerian men,
by Bosnian Federation police, from Sarajevo Prison into US custody in
Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns
that they had been arbitrarily detained in violation of their rights under the
International Covenant on Civil and Political Rights. It also referred to the
decision of the Human Rights Chamber of Bosnia and Herzegovina in
which the latter had found that the transfer had been in violation of Article 5
of the Convention, Article 1 of Protocol No. 7 and Article 1 of
Protocol No. 6.
7. Amnesty International, “United States of America, The threat of a
bad example: Undermining international standards as ‘war on
terror’ detentions continue”, 18 August 2003
245. The relevant passage of this report read as follows:
“Detainees have been held incommunicado in US bases in Afghanistan. Allegations
of ill-treatment have emerged. Others have been held incommunicado in US custody
in undisclosed locations elsewhere in the world, and the US has also instigated or
involved itself in ‘irregular renditions’, US parlance for informal transfers of detainees
between the USA and other countries which bypass extradition or other human rights
protections.”
8. Amnesty
International,
“Incommunicado
detention/Fear
of
ill-treatment”, 20 August 2003
246. The relevant passage of this report read as follows:
“Amnesty International is concerned that the detention of suspects in undisclosed
locations without access to legal representation or to family members and the
‘rendering’ of suspects between countries without any formal human rights
protections is in violation of the right to a fair trial, places them at risk of ill-treatment
and undermines the rule of law.”
9. International Committee of the Red Cross, United States: ICRC
President urges progress on detention-related issues, news release
04/03, 16 January 2004
247. The ICRC expressed its position as follows:
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“Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an
unknown number of people captured as part of the so-called global war on terror and
held in undisclosed locations. Mr Kellenberger echoed previous official requests from
the ICRC for information on these detainees and for eventual access to them, as an
important humanitarian priority and as a logical continuation of the organization’s
current detention work in Guantánamo and Afghanistan.”
10. Human Rights Watch - Statement on US Secret Detention Facilities
of 6 November 2005
248. On 6 November 2005 Human Rights Watch issued a “Statement on
US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”),
which indicated Romania’s and Poland’s complicity in the CIA rendition
programme. It was given 2 days after the Washington Post had published
Dana Priest’s article revealing information of secret detention facilities
designated for suspected terrorists run by the CIA outside the US, including
“Eastern European countries” (see also paragraph 253 below).
249. The statement read, in so far as relevant, as follows:
“Human Rights Watch has conducted independent research on the existence of
secret detention locations that corroborates the Washington Post’s allegations that
there were detention facilities in Eastern Europe.
Specifically, we have collected information that CIA airplanes travelling from
Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and
Romania. Human Rights Watch has viewed flight records showing that a Boeing 737,
registration number N313P – a plane that the CIA used to move several prisoners to
and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in
Poland and Romania on direct flights from Afghanistan on two occasions in 2003
and 2004. Human Rights Watch has independently confirmed several parts of the
flight records, and supplemented the records with independent research.
According to the records, the N313P plane flew from Kabul to northeastern Poland
on September 22, 2003, specifically, to Szymany airport, near the Polish town of
Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained
information that several detainees who had been held secretly in Afghanistan in 2003
were transferred out of the country in September and October 2003. The Polish
intelligence service maintains a large training facility and grounds near the Szymany
airport. ...
On Friday, the Associated Press quoted Szymany airport officials in Poland
confirming that a Boeing passenger plane landed at the airport at around midnight on
the night of September 22, 2003. The officials stated that the plane spent an hour on
the ground and took aboard five passengers with U.S. passports. ...
Further investigation is needed to determine the possible involvement of Poland and
Romania in the extremely serious activities described in The Washington Post article.
Arbitrary incommunicado detention is illegal under international law. It often acts as a
foundation for torture and mistreatment of detainees. U.S. government officials,
speaking anonymously to journalists in the past, have admitted that some secretly held
detainees have been subjected to torture and other mistreatment, including
waterboarding (immersing or smothering a detainee with water until he believes he is
about to drown). Countries that allow secret detention programs to operate on their
territory are complicit in the human rights abuses committed against detainees.
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113
Human Rights Watch knows the names of 23 high-level suspects being held secretly
by U.S. personnel at undisclosed locations. An unknown number of other detainees
may be held at the request of the U.S. government in locations in the Middle East and
Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that
approximately 100 persons are being held in secret detention abroad by the United
States.
Human Rights Watch emphasizes that there is no doubt that secret detention
facilities operated by the United States exist. The Bush Administration has cited, in
speeches and in public documents, arrests of several terrorist suspects now held in
unknown locations. Some of the detainees cited by the administration include: Abu
Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim
al-Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in
November 2002 ... .
Human Rights Watch urges the United Nations and relevant European Union bodies
to launch investigations to determine which countries have been or are being used by
the United States for transiting and detaining incommunicado prisoners. The U.S.
Congress should also convene hearings on the allegations and demand that the Bush
administration account for secret detainees, explain the legal basis for their continued
detention, and make arrangements to screen detainees to determine their legal status
under domestic and international law. We welcome the decision by the Legal Affairs
Committee of the Parliamentary Assembly of the Council of Europe to examine the
existence of U.S.-run detention centers in Council of Europe member states. We also
urge the European Union, including the EU Counter-Terrorism Coordinator, to further
investigate allegations and publish its findings.”
11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA
Custody” of 30 November 2005
250. On 30 November 2005 Human Rights Watch published a “List of
‘Ghost Prisoners’ Possibly in CIA Custody” (“the 2005 HRW List”), which
included the applicant. The document reads, in so far as relevant, as follows:
“The following is a list of persons believed to be in U.S. custody as ‘ghost
detainees’ – detainees who are not given any legal rights or access to counsel, and
who are likely not reported to or seen by the International Committee of the Red
Cross. The list is compiled from media reports, public statements by government
officials, and from other information obtained by Human Rights Watch. Human
Rights Watch does not consider this list to be complete: there are likely other “ghost
detainees” held by the United States.
Under international law, enforced disappearances occur when persons are deprived
of their liberty, and the detaining authority refuses to disclose their fate or
whereabouts, or refuses to acknowledge their detention, which places the detainees
outside the protection of the law. International treaties ratified by the United States
prohibit incommunicado detention of persons in secret locations.
Many of the detainees listed below are suspected of involvement in serious crimes,
including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya
and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none
on this list has been arraigned or criminally charged, and government officials,
speaking anonymously to journalists, have suggested that some detainees have been
tortured or seriously mistreated in custody.
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The current location of these prisoners is unknown.
List, as of December 1, 2005:
...
4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly
arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia),
suspected
senior
al-Qaeda
operational
planner.
Listed
as
captured
in
‘George W. Bush: Record of Achievement. Waging and Winning the War on Terror’,
available on the White House website. Previously listed as ‘disappeared’ by Human
Rights Watch.
...
9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu
Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002,
United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the
Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the
French oil tanker, Limburg. Listed in ‘George W. Bush: Record of Achievement,
Waging and Winning the War on Terror’, available on the White House website.
Previously listed as ‘disappeared’ by Human Rights Watch. ...
...
11. Mustafa al-Hawsawi (aka al-Hisawi)
Reportedly arrested on March 1, 2003 (together with Khaled Sheikh Mohammad),
Pakistan. Saudi, suspected al-Qaeda financier. Previously listed as “disappeared” by
Human Rights Watch.
12. Khaled Sheikh Mohammed
Reportedly arrested on March 1, 2003, Rawalpindi, Pakistan.
Kuwaiti (Pakistani parents), suspected al-Qaeda, alleged to have “masterminded”
Sept. 11 attacks, killing of Daniel Pearl, and USS Cole attack in 2000. Listed in
“George W. Bush: Record of Achievement, Waging and Winning the War on Terror,”
available on the White House website. Previously listed as “disappeared” by Human
Rights Watch. ...”
VIII. SELECTED MEDIA REPORTS AND ARTICLES
A. International media
1. Reports published in 2002
251. On 11 March 2002 The Washington Post published an article by
R. Chandrasekaran and P. Finn entitled “US Behind Secret Transfer of
Terror Suspects” which read, in so far as relevant, as follows:
“Since Sept. 11, the U.S. government has secretly transported dozens of people
suspected of links to terrorists to countries other than the United States, bypassing
extradition procedures and legal formalities, according to Western diplomats and
intelligence sources. The suspects have been taken to countries, including Egypt and
Jordan, whose intelligence services have close ties to the CIA and where they can be
subjected to interrogation tactics Including torture and threats to families - that are
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115
illegal in the United States, the sources said. In some cases, U.S. intelligence agents
remain closely involved in the interrogation, the sources said.
After September 11, these sorts of movements have been occurring all the time’, a
US diplomat told the Washington Post. ‘It allows us to get information from terrorists
in a way we can’t do on US soil’. ...
U.S. involvement in seizing terrorism suspects in third countries and shipping them
with few or no legal proceedings to the United States or other countries - known as
‘rendition’ - is not new. In recent years, U.S. agents, working with Egyptian
intelligence and local authorities in Africa, Central Asia and the Balkans, have sent
dozens of suspected Islamic extremists to Cairo or taken them to the United States,
according to U.S. officials, Egyptian lawyers and human rights groups. ...”
252. On 12 March 2002 The Guardian published an article written by
D. Campbell, entitled “US sends suspects to face torture” which was to an
extent based on the above article in the Washington Post. It read, in so far as
relevant, as follows:
“The US has been secretly sending prisoners suspected of al-Qaida connections to
countries where torture during interrogation is legal, according to US diplomatic and
intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be
subjected to torture and threats to their families to extract information sought by the
US in the wake of the September 11 attacks.
The normal extradition procedures have been bypassed in the transportation of
dozens of prisoners suspected of terrorist connections, according to a report in the
Washington Post. The suspects have been taken to countries where the CIA has close
ties with the local intelligence services and where torture is permitted.
According to the report, US intelligence agents have been involved in a number of
interrogations. A CIA spokesman yesterday said the agency had no comment on the
allegations. A state department spokesman said the US had been ‘working very
closely with other countries’ – it’s a global fight against terrorism’. ...
The seizing of suspects and taking them to a third country without due process of
law is known as ‘rendition’. The reason for sending a suspect to a third country rather
than to the US, according to the diplomats, is an attempt to avoid highly publicised
cases that could lead to a further backlash from Islamist extremists. ...
The US has been criticised by some of its European allies over the detention of
prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released
pictures of blindfolded prisoners kneeling on the ground, the defence secretary,
Donald Rumsfeld, was forced to defend the conditions in which they were being held.
Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles
to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners
of war. The US administration has resisted such moves, arguing that those detained,
both Taliban fighters and members of al-Qaida, were not entitled to be regarded as
prisoners of war because they were terrorists rather than soldiers and were not part of
a recognised, uniformed army.”
253. On 2 April 2002 ABC News reported:
“US officials have been discussing whether Zubaydah should be sent to countries,
including Egypt or Jordan, where much more aggressive interrogation techniques are
permitted. But such a move would directly raise a question of torture ... Officials have
also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea.
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Sources say it’s imperative to keep him isolated from other detainees as part of
psychological warfare, and even more aggressive tools may be used.”
254. Two Associated Press reports of 2 April 2002 stated:
“Zubaydah is in US custody, but it’s unclear whether he remains in Pakistan, is
among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay,
Cuba, or will be transported to a separate location.”
and:
“US officials would not say where he was being held. But they did say he was not
expected in the United States any time soon. He could eventually be held in
Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or
transferred to a third country.”
255. On 26 December 2002 The Washington Post published a detailed
article entitled “Stress and Duress Tactics Used on Terrorism Suspects Held
in Secret Overseas Facilities”. The article referred explicitly to the practice
of rendition and summarised the situation as follows:
“a brass-knuckled quest for information, often in concert with allies of dubious
human rights reputation; in which the traditional lines between right and wrong, legal
and inhumane, are evolving and blurred. ...
‘If you don’t violate someone’s human rights some of the time; you probably aren’t
doing your job,’ said one official who has supervised the capture and transfer of
accused terrorists.”
The article also noted that
“there were a number of secret detention centers overseas where US due process
does not apply ... where the CIA undertakes or manages the interrogation of suspected
terrorists ... off-limits to outsiders and often even to other government agencies. In
addition to Bagram and Diego Garcia, the CIA has other detention centres overseas
and often uses the facilities of foreign intelligence services”.
The Washington Post also gave details on the rendition process:
“The takedown teams often ‘package’ prisoners for transport, fitting them with
hoods and gags, and binding them to stretchers with duct tape.”
The article received worldwide exposure. In the first weeks of 2003 it
was, among other things, the subject of an editorial in the Economist and a
statement by the World Organisation against Torture.
2. Reports published in 2005
256. On 2 November 2005 The Washington Post reported that the
United States had used secret detention facilities in Eastern Europe and
elsewhere to hold illegally persons suspected of terrorism. The article,
entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from
the US Government, notably the CIA, but no specific locations in Eastern
Europe were identified. It was written by Dana Priest, an American
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117
journalist. She referred to the countries involved as “Eastern-European
countries”.
It read, in so far as relevant, as follows:
“The CIA has been hiding and interrogating some of its most important al Qaeda
captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign
officials familiar with the arrangement.
The secret facility is part of a covert prison system set up by the CIA nearly four
years ago that at various times has included sites in eight countries, including
Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small
center at the Guantánamo Bay prison in Cuba, according to current and former
intelligence officials and diplomats from three continents.
The hidden global internment network is a central element in the CIA’s
unconventional war on terrorism. It depends on the cooperation of foreign intelligence
services, and on keeping even basic information about the system secret from the
public, foreign officials and nearly all members of Congress charged with overseeing
the CIA’s covert actions.
The existence and locations of the facilities – referred to as ‘black sites’ in classified
White House, CIA, Justice Department and congressional documents – are known to
only a handful of officials in the United States and, usually, only to the president and a
few top intelligence officers in each host country.
...
Although the CIA will not acknowledge details of its system, intelligence officials
defend the agency’s approach, arguing that the successful defense of the country
requires that the agency be empowered to hold and interrogate suspected terrorists for
as long as necessary and without restrictions imposed by the U.S. legal system or even
by the military tribunals established for prisoners held at Guantánamo Bay.
The Washington Post is not publishing the names of the Eastern European countries
involved in the covert program, at the request of senior U.S. officials. They argued
that the disclosure might disrupt counterterrorism efforts in those countries and
elsewhere and could make them targets of possible terrorist retaliation.
...
It is illegal for the government to hold prisoners in such isolation in secret prisons in
the United States, which is why the CIA placed them overseas, according to several
former and current intelligence officials and other U.S. government officials. Legal
experts and intelligence officials said that the CIA’s internment practices also would
be considered illegal under the laws of several host countries, where detainees have
rights to have a lawyer or to mount a defense against allegations of wrongdoing.
Host countries have signed the U.N. Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA
interrogators in the overseas sites are permitted to use the CIA’s approved “Enhanced
Interrogation Techniques,” some of which are prohibited by the U.N. convention and
by U.S. military law. They include tactics such as ‘waterboarding’, in which a
prisoner is made to believe he or she is drowning.
...
The contours of the CIA’s detention program have emerged in bits and pieces over
the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands
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have opened inquiries into alleged CIA operations that secretly captured their citizens
or legal residents and transferred them to the agency’s prisons.
More than 100 suspected terrorists have been sent by the CIA into the covert
system, according to current and former U.S. intelligence officials and foreign
sources. This figure, a rough estimate based on information from sources who said
their knowledge of the numbers was incomplete, does not include prisoners picked up
in Iraq.
The detainees break down roughly into two classes, the sources said.
About 30 are considered major terrorism suspects and have been held under the
highest level of secrecy at black sites financed by the CIA and managed by agency
personnel, including those in Eastern Europe and elsewhere, according to current and
former intelligence officers and two other U.S. government officials. Two locations in
this category – in Thailand and on the grounds of the military prison at Guantánamo
Bay – were closed in 2003 and 2004, respectively.
A second tier – which these sources believe includes more than 70 detainees – is a
group considered less important, with less direct involvement in terrorism and having
limited intelligence value. These prisoners, some of whom were originally taken to
black sites, are delivered to intelligence services in Egypt, Jordan, Morocco,
Afghanistan and other countries, a process sometimes known as “rendition.” While
the first-tier black sites are run by CIA officers, the jails in these countries are
operated by the host nations, with CIA financial assistance and, sometimes, direction.
...
The top 30 al Qaeda prisoners exist in complete isolation from the outside world.
Kept in dark, sometimes underground cells, they have no recognized legal rights, and
no one outside the CIA is allowed to talk with or even see them, or to otherwise verify
their well-being, said current and former and U.S. and foreign government and
intelligence officials.
...
The Eastern European countries that the CIA has persuaded to hide al Qaeda
captives are democracies that have embraced the rule of law and individual rights
after decades of Soviet domination. Each has been trying to cleanse its intelligence
services of operatives who have worked on behalf of others – mainly Russia and
organized crime.
...
By mid-2002, the CIA had worked out secret black-site deals with two countries,
including Thailand and one Eastern European nation, current and former officials
said. An estimated $100 million was tucked inside the classified annex of the first
supplemental Afghanistan appropriation. ...”
257. On 5 December 2005, ABC News published a report, by Brian Ross
and Richard Esposito, entitled “Sources Tell ABC News Top Al Qaeda
Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror
Leaders Subjected to ‘Enhanced Interrogation Techniques’” and listing the
names of top al-Qaeda terrorist suspects held in Poland and Romania,
including the applicant. This report was available on the Internet for only a
very short time; it was withdrawn from ABC News’ webpage shortly
thereafter following the intervention of lawyers on behalf of the network’s
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119
owners. At present, the content is again publicly available and reads, in so
far as relevant, as follows:
“Two CIA secret prisons were operating in Eastern Europe until last month when
they were shut down following Human Rights Watch reports of their existence in
Poland and Romania.
Current and former CIA officers speaking to ABC News on the condition of
confidentiality say the United States scrambled to get all the suspects off European
soil before Secretary of State Condoleezza Rice arrived there today. The officers say
11 top al Qaeda suspects have now been moved to a new CIA facility in the North
African desert.
CIA officials asked ABC News not to name the specific countries where the prisons
were located, citing security concerns.
The CIA declines to comment, but current and former intelligence officials tell ABC
News that 11 top al Qaeda figures were all held at one point on a former Soviet air
base in one Eastern European country. Several of them were later moved to a second
Eastern European country.
All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest
interrogation techniques in the CIA’s secret arsenal, the so-called ‘enhanced
interrogation techniques’ authorized for use by about 14 CIA officers and first
reported by ABC News on Nov. 18.
Rice today avoided directly answering the question of secret prisons in remarks
made on her departure for Europe, where the issue of secret prisons and secret flights
has caused a furor.
Without mentioning any country by name, Rice acknowledged special handling for
certain terrorists. ‘The captured terrorists of the 21st century do not fit easily into
traditional systems of criminal or military justice, which were designed for different
needs. We have had to adapt’, Rice said.
The CIA has used a small fleet of private jets to move top al Qaeda suspects from
Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has
identified Poland and Romania as the countries that housed secret sites.
But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative
Correspondent Brian Ross today: ‘My president has said there is no truth in these
reports.’
Ross asked: ‘Do you know otherwise, sir, are you aware of these sites being shut
down in the last few weeks, operating on a base under your direct control?’ Sikorski
answered, ‘I think this is as much as I can tell you about this’.
In Romania, where the secret prison was possibly at a military base visited last year
by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today
there is no evidence of a CIA site but that he will investigate.
Sources tell ABC that the CIA’s secret prisons have existed since March 2002 when
one was established in Thailand to house the first important al Qaeda target captured.
Sources tell ABC that the approval for another secret prison was granted last year by a
North African nation.
Sources tell ABC News that the CIA has a related system of secretly returning other
prisoners to their home country when they have outlived their usefulness to the United
States.
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These same sources also tell ABC News that U.S. intelligence also ships some
‘unlawful combatants’ to countries that use interrogation techniques harsher than any
authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco
and Egypt were among the nations used in order to extract confessions quickly using
techniques harsher than those authorized for use by U.S. intelligence officers. These
prisoners were not necessarily citizens of those nations.
According to sources directly involved in setting up the CIA secret prison system, it
began with the capture of Abu [Zubaydah] in Pakistan. After treatment there for
gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a
small, disused warehouse on an active airbase. There, his cell was kept under 24-hour
closed circuit TV surveillance and his life-threatening wounds were tended to by a
CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was
given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand
long hours in a cold cell, and finally handcuffed and strapped feet up to a water board
until after 0.31 seconds he begged for mercy and began to cooperate. ...”
3. ABC News reports of 2009
258. On 20 August 2009 ABC News reported that up to the end of 2005 a
secret CIA prison had been operating in Lithuania for the purposes of
detention of high-value al-Qaeda terrorists. In particular, it was reported that
according to “former CIA officials directly involved or briefed” on the CIA
programme, “Lithuanian officials provided the CIA with a building on the
outskirts of Vilnius, the country’s capital, where as many as eight suspects
were held for more than a year.” The published report, by Matthew Cole,
was entitled “Lithuania Hosted Secret CIA Prison To Get ‘Our Ear’” reads,
in so far as relevant, as follows:
“A third European country has been identified to ABC News as providing the CIA
with facilities for a secret prison for high-value al Qaeda suspects: Lithuania, the
former Soviet state. Former CIA officials directly involved or briefed on the highly
classified program tell ABC News that Lithuanian officials provided the CIA with a
building on the outskirts of Vilnius, the country’s capital, where as many as eight
suspects were held for more than a year, until late 2005 when they were moved
because of public disclosures about the program. Flight logs viewed by ABC News
confirm that CIA planes made repeated flights into Lithuania during that period.
The CIA told ABC News that reporting the location of the now-closed prison was
‘irresponsible’. ‘The CIA does not publicly discuss where facilities associated with its
past detention program may or may not have been located’, said CIA spokesman Paul
Gimigliano. ‘We simply do not comment on those types of claims, which have
appeared in the press from time to time over the years. The dangers of airing such
allegations are plain. These kinds of assertions could, at least potentially, expose
millions of people to direct threat. That is irresponsible’. Former CIA officials tell
ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after
9/11 to detain and interrogate top al Qaeda operatives captured around the world.
Thailand, Romania, Poland, Morocco, and Afghanistan have previously been
identified as countries that housed secret prisons for the CIA.
According to a former intelligence official involved in the program, the former
Soviet Bloc country agreed to host a prison because it wanted better relations with the
U.S. Asked whether the Bush administration or the CIA offered incentives in return
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
121
for allowing the prison, the official said, ‘We didn’t have to’. The official said, ‘They
were happy to have our ear’.
Through their embassy in Washington, the Lithuanian government denied hosting a
secret CIA facility. ‘The Lithuanian Government denies all rumors and interpretations
about alleged secret prison that supposedly functioned on Lithuanian soil and possibly
was used by [CIA]’, said Tomas Gulbinas, an embassy spokesman.
CIA Secret Prisons
According to two top government officials at the time, revelations about the
existence of prisons in Eastern Europe in late 2005 by the Washington Post and ABC
News led the CIA to close its facilities in Lithuania and Romania and move the
al-Qaeda prisoners out of Europe. The so-called High Value Detainees (HVD) were
moved into ‘war zone’ facilities, according to one of the former CIA officials,
meaning they were moved to Iraq and Afghanistan. Within nine months, President
Bush announced the existence of the program and ordered the transfer of 14 of the
detainees, including Khaled Sheikh Mohammed, Ramzi bin al Shihb and Abu
Zubaydah, to Guantánamo, where they remain in CIA custody.
The CIA high value detainee (HVD) program began after the March 2002 capture of
Abu Zubaydah. Within days, the CIA arranged for Zubaydah to be flown to Thailand.
Later, in mid-2003 after Thai government and intelligence officials became nervous
about hosting a secret prison for Zubaydah and a second top al Qaeda detainee,
according to a former CIA officer involved in the program. One was transferred to a
facility housed on a Polish intelligence base in December 2002, said a former official
involved with transferring detainees. The facility was known as Ruby Base, according
to two former CIA officials familiar with the location.
One of the former CIA officers involved in the secret prison program allowed ABC
News to view flight logs that show aircraft used to move detainees to and from the
secret prisons in Lithuania, Thailand, Afghanistan, Poland, Romania, Morocco and
Guantánamo Bay. The purpose of the flights, said the officer, was to move terrorist
suspects. The official told ABC News that the CIA arranged for false flight plans to be
submitted to European aviation authorities. Planes flying into and out of Lithuania, for
example, were ordered to submit paperwork that said they would be landing in nearby
countries, despite actually landing in Vilnius, he said. ‘Finland and Poland were used
most frequently’ as false destinations, the former CIA officer told ABC News. A
similar system was used to land planes in Romania and Poland.
Interrogation and Detention Program
Lithuania, Poland, and Romania have all ratified the U.N. Convention Against
Torture as well as the European Convention on Human Rights. All three countries’
legal systems prohibit torture and extrajudicial detention. Polish authorities are
currently conducting an investigation into whether any Polish law was broken by
government officials there in hosting one of the secret prisons, according to a
published report in the German magazine Der Spiegel.
‘There are important legal issues at stake’, said human rights researcher John Sifton.
‘As with Poland and Romania, CIA personnel involved in any secret detentions and
interrogations in Lithuania were not only committing violations of U.S. federal law
and international law, they were also breaking Lithuanian laws relating to lawless
detention, assault, torture, and possibly war crimes. Lithuanian officials who worked
with the CIA were breaking applicable Lithuanian laws as well’.
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Washington has been sharply divided over whether investigations into the
interrogation and detention program should be opened. The CIA has been ordered by
a federal judge to declassify and release much of the agency’s inspector general report
about the first years of the program by next week.
Attorney General Eric Holder has said that he is weighing whether he should
appoint a special prosecutor to investigate alleged abuses in the program after reading
the IG report. At issue are instances of abuse that went beyond the guidelines set up
by the Office of Legal Counsel (OLC), which included waterboarding and sleep
deprivation of up to 11 days, according to people aware of Holder’s thinking.
President Obama has called the practices ‘torture and abolished the program within a
few days of taking office this year. But the president has also said that his
administration intended to ‘look forward’ not backward at Bush-era policies of
interrogation and detention.
One current intelligence official involved in declassifying the IG report told ABC
News that the unredacted portions will reveal how and when CIA interrogators used
methods and tactics that were not permitted by the OLC. ‘The focus will be on the
cases where rules were broken’, the official said. ‘But remember that all instances
were referred to the Justice Department and only one resulted in a prosecution’, said
the official, referring to the conviction of CIA contractor David Passaro, who beat an
Afghan detainee to death in 2003.”
259. On 18 November 2009 ABC News published another report, by
Matthew Cole and Brian Ross, entitled “CIA Secret “Torture” Prison Found
at Fancy Horseback Riding Academy”. It reads, in so far as relevant, as
follows:
“The CIA built one of its secret European prisons inside an exclusive riding
academy outside Vilnius, Lithuania, a current Lithuanian government official and a
former U.S. intelligence official told ABC News this week.
Where affluent Lithuanians once rode show horses and sipped coffee at a café, the
CIA installed a concrete structure where it could use harsh tactics to interrogate up to
eight suspected al-Qaeda terrorists at a time.
‘The activities in that prison were illegal’, said human rights researcher John Sifton.
‘They included various forms of torture, including sleep deprivation, forced standing,
painful stress positions’.
Lithuanian officials provided ABC News with the documents of what they called a
CIA front company, Elite, LLC, which purchased the property and built the “black
site” in 2004.
Lithuania agreed to allow the CIA prison after President George W. Bush visited the
country in 2002 and pledged support for Lithuania’s efforts to join NATO.
‘The new members of NATO were so grateful for the U.S. role in getting them into
that organization that they would do anything the U.S. asked for during that period’,
said former White House counterterrorism czar Richard Clarke, now an ABC News
consultant. ‘They were eager to please and eager to be cooperative on security and on
intelligence matters’.
Lithuanian president Dalia Grybauskaitė declined ABC’s request for an interview.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
123
ABC News first reported that Lithuania was one of three eastern European countries,
along with Poland and Romania, where the CIA secretly interrogated suspected high-
value al-Qaeda terrorists, but until now the precise site had not been confirmed.
Until March 2004, the site was a riding academy and café owned by a local family.
The facility is in the town of Antaviliai, in the forest 20 kilometers northeast of the
city center of Vilnius, near an exclusive suburb where many government officials live.
A ‘Building Within A Building’
In March 2004, the family sold the property to Elite, LLC, a now-defunct company
registered in Delaware and Panama and Washington, D.C. That same month,
Lithuania marked its formal admission to NATO.
The CIA constructed the prison over the next several months, apparently flying in
prefabricated elements from outside Lithuania. The prison opened in Sept. 2004.
According to sources who saw the facility, the riding academy originally consisted
of an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built a
thick concrete wall inside the riding area. Behind the wall, it built what one
Lithuanian source called a ‘building within a building’.
On a series of thick concrete pads, it installed what a source called ‘prefabricated
pods’ to house prisoners, each separated from the other by five or six feet. Each pod
included a shower, a bed and a toilet. Separate cells were constructed for
interrogations. The CIA converted much of the rest of the building into garage space.
Intelligence officers working at the prison were housed next door in the converted
stable, raising the roof to add space. Electrical power for both structures was provided
by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated
structure were 110 volts, meaning they were designed for American appliances.
European outlets and appliances typically use 220 volts.
The prison pods inside the barn were not visible to locals. They describe seeing
large amounts of earth being excavated during the summer of 2004. Locals who saw
the activity at the prison and approached to ask for work were turned away by
English-speaking guards. The guards were replaced by new guards every 90 days.
Former CIA officials directly involved or briefed on the highly classified secret
prison program tell ABC News that as many as eight suspects were held for more than
a year in the Vilnius prison. Flight logs viewed by ABC News confirm that CIA planes
made repeated flights into Lithuania during that period. In November 2005, after
public disclosures about the program, the prison was closed, as was another ‘black
site’ in Romania.
Lithuanian Prison One of Many Around Europe, Officials Said
The CIA moved the so-called High Value Detainees (HVD) out of Europe to ‘war
zone’ facilities, according to one of the former CIA officials, meaning they were
moved to the Middle East. Within nine months, President Bush announced the
existence of the program and ordered the transfer of 14 of the detainees, including
Khaled Sheikh Muhammad, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo.
In August 2009, after ABC News reported the existence of the secret prison outside
Vilnius, Lithuanian president Grybauskaitė called for an investigation. If this is true’,
Grybauskaitė said, ‘Lithuania has to clean up, accept responsibility, apologize, and
promise it will never happen again’.
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At the time, a Lithuanian government official denied that his country had hosted a
secret CIA facility. The CIA told ABC News that reporting the existence of the
Lithuanian prison was ‘irresponsible’ and declined to discuss the location of the
prison.
On Tuesday, the CIA again declined to talk about the prison. ‘The CIA’s terrorist
interrogation program is over’, said CIA spokesman Paul Gimigliano. ‘This agency
does not discuss publicly where detention facilities may or may not have been’.
Former CIA officials told ABC News that the prison in Lithuania was one of eight
facilities the CIA set-up after 9/11 to detain and interrogate top al-Qaeda operatives
captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan
have also been identified as countries that housed secret prisons for the CIA. President
Barack Obama ordered all the sites closed shortly after taking office in January.
The Lithuanian prison was the last ‘black’ site opened in Europe, after the CIA’s
secret prison in Poland was closed down in late 2003 or early 2004.
‘It obviously took a lot of effort to keep [the prison] secret’, said John Sifton, whose
firm One World Research investigates human rights abuses. “There’s a reason this
stuff gets kept secret’. ‘It’s an embarrassment, and a crime’.”
4. Other Reports (2009- 2011)
260. On 19 November 2009 The Washington Post published a report by
Craig Whitlock, entitled “Lithuania investigates possible ‘black site’”. It
read, is so far as relevant:
“ANTAVILIAI, LITHUANIA -- Residents of this village were mystified five years
ago when tight-lipped American construction workers suddenly appeared at a
mothballed riding stable here and built a large, two-story building without windows,
ringed by a metal fence and security cameras.
Today, a Lithuanian parliamentary committee is investigating whether the CIA
operated a secret prison for terrorism suspects on the plot of land at the edge of a thick
forest for more than a year, from 2004 until late 2005.
Lithuanian land registry documents reviewed by The Washington Post show the
property was bought in March 2004 by Elite LLC, an unincorporated U.S. firm
registered in the District.
Records in Lithuania and Washington do not reveal the names of individual officers
for Elite but identify its sole shareholder as Star Finance Group and Holdings Inc., a
Panamanian corporation. There is no record of Elite owning other property in
Lithuania.
The company, which has since had its registration revoked by D.C. authorities, in
turn sold the property to the Lithuanian government in 2007, two years after the
existence of the CIA’s overseas network of secret prisons known as black sites --
including some in Eastern Europe -- was first revealed by The Washington Post.
At the time, The Post withheld the names of Eastern European countries involved in
the covert program at the request of White House officials, who argued that disclosure
could subject those countries to retaliation from al-Qaeda.
The Lithuanian government has not publicly confirmed whether the property was
one of the CIA’s black sites.
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125
The site in Antaviliai, about 15 miles outside the capital, Vilnius, is now used by
Lithuania’s State Security Department as a training center. Department officials have
declined to comment on the circumstances under which it acquired the property or
whether it was used by the CIA. A CIA spokesman also declined to comment.
Domas Grigaliūnas, a former counterintelligence officer with the Lithuanian
military, said it was widely known among the Lithuanian secret services that U.S.
intelligence partners had built the site, although its original purpose was kept highly
classified.’
‘It just popped up out of nowhere’, he said in an interview. ‘Everybody knew this
was handed to us by the Americans’.
Grigaliūnas said he was asked in 2004 by the deputy director of Lithuanian military
intelligence to develop plans to help a ‘foreign partner’ that was interested in bringing
individuals to Lithuania and concealing their whereabouts as part of a covert
operation.
He said he made some recommendations but was never told the identity of the
foreign partner or whether the operation was carried out. Since then, however, he said
he has become convinced that the program involved the CIA’s detention centers for
terrorism suspects.
‘I have no documents to prove it, and I never worked in any prisons, but I believe
they existed here’, he said in an interview.
Villagers who live in a crumbling apartment complex about 100 yards from the site
recalled how English-speaking construction workers descended on a small, shuttered
horse-riding academy there in 2004. They said the workers refused to answer
questions about what they were doing but brought shipping containers filled with
building materials. The workers also excavated large amounts of soil; with all the
digging, residents said they assumed that part of the new facility was underground.
‘If you got close, they would tell us, in English, to go away’, said a retired man who
lives nearby and spoke on the condition of anonymity, citing fears of retribution. ‘We
were really wondering what they were up to. We even wondered if it was a Mafia
drug operation or something’.
Members of the Lithuanian Parliament’s National Security and Defense Committee
visited the site recently as part of their investigation into whether the CIA detained
terrorism suspects on Lithuanian territory.
The probe was authorized last month by the Parliament after ABC News reported in
August that two CIA-chartered flights had brought al-Qaeda prisoners from
Afghanistan to Vilnius in 2004 and 2005.
Lithuanian government officials denied the ABC News report at the time and said
there was no documentation that the flights ever landed in their country. But the
Parliament decided to take another look after Lithuania’s newly elected president,
Dalia Grybauskaitė, said in October that she had ‘indirect suspicions’ that reports of
the CIA prison were accurate and urged a more comprehensive investigation.
Arvydas Anušauskas, chairman of the National Security and Defense Committee,
declined to comment on its findings. In response to written questions submitted by
The Post, he said the committee would interview ‘all the persons who might have
known or could have known the information in question’.
‘The committee has all rights and tools to ultimately clarify the situation and to
either confirm or deny any allegations of the transportation of detainees by the Central
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Intelligence Agency of the United States and their detention on the territory of the
Republic of Lithuania’, he said.
Lithuanian officials have also been pressed to investigate by the Council of Europe,
an official human rights watchdog, which has conducted its own probe of CIA
operations on the continent. Council officials said they had received confidential
records confirming that CIA-chartered planes had flown from Afghanistan to Vilnius
in 2004 and 2005.
Thomas Hammarberg, the council’s commissioner for human rights, said in a
telephone interview that flight logs had been doctored to indicate that the planes had
touched down in neighboring countries, including Finland and Poland.
Hammarberg visited Vilnius last month and said he personally urged Lithuanian
officials to take the issue more seriously. ‘I told them it is quite likely that further
information might leak from the United States, so they should hurry up and do their
own investigation now’, he said.”
261. On 22 December 2009 Agence France Press published a report by
Marielle Vitureau, entitled “Lithuania May Have Hosted Two US ‘War on
Terror’ Jails”. It reads in so far as relevant, as follows:
“Vilnius - Staunch US ally Lithuania may have hosted two ‘war on terror’ lock-ups
used by American agents to interrogate suspected Al-Qaeda members, the head of an
inquiry commission said Tuesday.
“‘The sites existed’, Arvydas Anušauskas told reporters as he presented the findings
of a probe launched last month by Lithuanian lawmakers. ‘And planes landed’. But
Anušauskas noted it was not possible to say if any suspects were actually brought to
the Baltic state.
‘Regarding the ‘cargo’, I can’t confirm anything, because Lithuanian authorities
could not carry out the usual checks, so what was being transported was unknown’, he
explained.
Ex-president Valdas Adamkus, who was in power for much of the period that the
sites are believed to have operated, rejected the findings. ‘I am certain this never
happened and nobody proved me wrong’, Adamkus told the Baltic News Service.
Lithuania’s parliament called for an investigation after the US television channel
ABC alleged that the ex-Soviet republic had hosted a CIA ‘black site’, or secret
facility, for a handful of captives. ABC cited unnamed former intelligence officials.
The move, it was told, was a trade-off for Washington’s unbending support for
Lithuania’s 2004 NATO admission.
Ex-communist US allies Romania and Poland have faced similar claims in the past.
‘We have identified the sites. The first project was developed from 2002. In
response to the wishes of our partners and the conditions that were imposed, the site
was meant to host one person. The second site was created in 2004’, Anušauskas said.
The second site is believed to have been a converted riding school in the hamlet of
Antaviliai, some 20 kilometres (13 miles) from Vilnius. It was purchased in March
2004 by a US-registered firm Elite LLC - purportedly a CIA front.
According to information obtained by AFP, the US embassy in Vilnius was
involved in acquiring the site for two million litas (579,000 euros, 829,000 dollars).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
127
‘The lay-out of the buildings, their secret nature, the fence around the site, plus the
only sporadic visits by VSD operatives [i.e. the SSD], enabled our partners to carry
out activities without VSD control and to use the place however they liked’, said
Anušauskas, using the acronym for Lithuanian intelligence.
Lithuania’s land register shows that the Lithuanian state bought the property in
January 2007. It reportedly has since served as a VSD training centre.
Prime Minister Andrius Kubilius, in government since winning an election in
October 2008, slammed the VSD. ‘The biggest concern comes from the fact that a few
agents, without consulting the head of state, took a decision that breached the law’, he
told reporters, adding that ‘the VSD became a state within a state’.
Defence Minister Rasa Juknevičienė said she had previously thought the claims
were ‘nonsense’. ‘I could not say this today’, she told reporters.
The probe found that five CIA-linked aircraft landed on Lithuanian soil from 2003
to 2006. Two touched down in Vilnius on February 3, 2003, and October 6, 2005. In
the second case, border guards were barred from checking the plane, Anušauskas said.
Three other aircraft landed at Palanga, on the Baltic coast, around 330 kilometres
from Vilnius, on January 2 and February 18, 2005, and March 25, 2006.
Anušauskas said the probe concluded that Lithuania’s heads of state were ‘not
informed, or only informed superficially’ about the sites.
Adamkus was in power from 1998 to 2003 and again from 2004 to 2009. In
between, Rolandas Paksas served a year in office before being impeached in a graft
case.
Earlier this month, Paksas said that in 2003 he declined a VSD request to transfer
suspects to Lithuania. The VSD boss at the time, Mečys Laurinkus, said this month
that the request had been hypothetical.”
262. On 8 December 2011 The Independent published an article written
by A. Goldman and M. Apuzzo, entitled “Inside Romania’s secret CIA
prison”. While the article concerned the alleged CIA “black site” in
Bucharest, it also referred in passing to a secret detention facility in
Lithuania. The relevant parts read:
“The Romanian prison was part of a network of so-called black sites that the CIA
operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons
were closed by May 2006, and the CIA’s detention and interrogation programme
ended in 2009.
Unlike the CIA’s facility in Lithuania’s countryside or the one hidden in a Polish
military installation, the CIA’s prison in Romania was not in a remote location. It was
hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees
and homes, along busy train tracks.
...
The Romanian and Lithuanian sites were eventually closed in the first half of 2006
before CIA Director Porter Goss left the job. Some of the detainees were taken to
Kabul, where the CIA could legally hold them before they were sent to Guantánamo.
Others were sent back to their native countries.”
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B. Lithuanian media
263. The applicant produced copies of a number of articles in the
Lithuanian press published from 2003 onwards, referring to capture and
transfer of detainees to Guantánamo and the conditions of their detention.
The summary of the media coverage produced by the applicant in
English reads as follows:
“(i) On 18 June 2004, the Baltic News Service reported on secret CIA detention,
noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret
detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On
26 July 2004, Delfi.lt, the leading Lithuanian online news site, published a lengthy
discussion of the “question of means” in the “war on terrorism.” The report described
the dilemma facing European states supporting the U.S. fight against terrorism in the
light of the abusive United States detention and interrogation policies in Afghanistan,
Guantánamo and Iraq. In October 2004, a major daily, Lietuvos Rytas, described the
ongoing scandal of prisoner torture by United States officials in Afghanistan. In
March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the
detention and torture tactics used by the USA.
(ii) On 17 December 2004, the Baltic News Service reported on the secret CIA
prison established at Guantánamo Bay and the incommunicado detention of detainees
there.
(iii) On 7 March 2005, the major Lithuanian news agency ELTA reported on the
classified Top Secret executive order issued by United States President George Bush
in the first days after 11 September 2001 that gave broad authority for the CIA to
conduct secret renditions, detention and interrogation. Referring to the “programme of
prisoner rendition”, ELTA described some of the abusive conditions under which
detainees were held and interrogated.
(iv) The following week ELTA reported that European officials would investigate
whether the CIA agents had violated the law while carrying out rendition operations
in Europe involving transfer of persons to countries where they could face torture.
According to ELTA, “the CIA usually organises these operations with the consent of
local surveillance organisations; the governments of Italy, Germany and Sweden are
investigating whether these actions infringe local laws and human rights.” This was
followed on 25 October 2005 by the Baltic News Service reporting that the United
States government was seeking to exempt CIA employees from the application of the
prohibition of cruel and humiliating treatment.
(v) On 2 November 2005 ELTA reported on allegations of secret detention facilities
in neighbouring Poland and Romania, noting that both denied the existence of CIA
secret prisons on their territory but that the Council of Europe was investigating the
claims.
(vi) In November 2005 reports began to emerge in Lithuania that aircraft associated
with the CIA rendition programme, including N313P and N379P, had used Lithuanian
airspace. Lithuanian newspapers published numerous reports in November 2005
detailing the nature of the allegations of a CIA network of secret prisons.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
129
IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET
DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN
EUROPE, INCLUDING LITHUANIA
A. Council of Europe
1. Procedure under Article 52 of the Convention
264. In November 2005, the Secretary General of the Council of Europe,
Mr Terry Davis, acting under Article 52 of the Convention and in
connection with reports of European collusion in secret rendition flights,
sent a questionnaire to – at that time 45 – States Parties to the Convention,
including Lithuania.
The States were asked to explain how their internal law ensured the
effective implementation of the Convention on four issues: 1) adequate
controls over acts by foreign agents in their jurisdiction; 2) adequate
safeguards to prevent, as regards any person in their jurisdiction,
unacknowledged deprivation of liberty, including transport, with or without
the involvement of foreign agents; 3) adequate responses (including
effective investigations) to any alleged infringements of ECHR rights,
notably in the context of deprivation of liberty, resulting from conduct of
foreign agents; 4) whether since 1 January 2002 any public official had been
involved, by action or omission, in such deprivation of liberty or transport
of detainees; whether any official investigation was under way or had been
completed.
265. Lithuania’s reply was prepared by the Ministry of Foreign Affairs
on the basis of information provided by the relevant State institutions. The
reply was approved at a consultation meeting of the Lithuanian Government
and was discussed at a meeting of the Seimas Foreign Affairs Committee
when it considered the issue of the activities of the United States secret
services in Europe allegedly carried out in violation of human rights. No
competent State institution, either in the course of preparation of the replies
by the Ministry of Foreign Affairs or during consideration of the issue by
the Seimas Foreign Affairs Committee, provided evidence confirming that
the CIA or other United States secret services had been engaged in the
illegal confinement of suspected terrorists on Lithuanian territory. Nor was
there any information confirming that Lithuania’s airports had been used for
covert transportation of suspected terrorists.
266. In February 2006 the Lithuanian Government provided the
Secretary General with answers to the questions posed. The response was a
brief summary of the legal framework governing the functioning of foreign
agents in Lithuania and the theoretical possibility of claiming damages for
unlawful actions by State officials.
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267. In a letter of 7 March 2006 the Secretary General noted that the
explanations provided by the Lithuanian Government did not address all the
questions in a sufficiently detailed way. He asked for supplementary
explanations on 1) control mechanisms regarding transiting aircraft which
might be used for rendition purposes by foreign agencies, and to what extent
the Lithuanian authorities could exercise jurisdiction over such aircraft;
2) whether since 1 January 2002 any Lithuanian officials had been involved
in secret rendition, and whether any investigations had been conducted in
that connection. Lithuania replied on 7 April 2006.
268. On 14 June 2006 the Secretary General issued the Supplementary
report under Article 52 ECHR on the question of secret detention and
transport of detainees suspected of terrorist acts, notably by or at the
instigation of foreign agencies (SG/Inf92006)13). It contained the results of
an analysis of the replies received in response to the second series of letters
sent by the Secretary General.
Lithuania’s replies as regards control mechanisms concerning transiting
aircraft which might be used for rendition purposes by foreign agencies, and
to what extent the Lithuanian authorities could exercise jurisdiction over
such aircraft were included in the report. The relevant sections read as
follows:
“3. Control mechanisms regarding transiting aircraft
...
3.2. State aircraft
51. Several States explain in detail their national legislation stipulating clearance
requirements for foreign State aircraft (Denmark, Croatia, Georgia, Latvia, Lithuania
and Portugal). From the replies given, it appears that foreign governments are
generally not required to provide information on the identity and status of persons on
board. Once an authorisation is granted, the State aircraft benefits from immunity and
is not subject to controls. ... No country mentions the use of specific procedures or
clauses designed to ensure effective guarantees against serious human rights
violations.
52. Latvia (in 2005) and Lithuania (in 2004) enacted comprehensive regulations
prescribing the procedure of granting permits for foreign State aircraft. Requests for
permission must be made in advance. They must indicate, among other things, the
number of passengers (but not their identity, except for VIPs), the purpose of the
flight, the flight route and the airports used. ...
53. Estonia, Georgia, Lithuania and Slovenia indicate that any transport of detained
persons through their respective territories requires prior consent by the Ministry of
Justice or the Prosecutor General’s Office. However, according to the replies of
Lithuania and Slovenia, such consent would not be required for transportation by air
without a scheduled landing.
54. In contrast to the replies to my first letter (see paragraph 55 of SG/Inf(2006)5),
several countries now refer to “general” or “blanket” overflight clearances or rights.
Referring to NATO regulations, Latvia and Lithuania declare that NATO has the right
to carry out the control and defence of their respective airspace. Military aircraft of
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
131
NATO member States are accordingly exempt from existing control mechanisms. ...
Such arrangements appear to be based on mutual trust. No information is provided
about possible safeguards against abuse.
55. Lithuania indicates that it granted permanent permissions (valid each time for
one year) to use its airspace to US State aircraft from 2001 to 2006. ...”
As regards the question whether, since 1 January 2002 (or since the date
of entry into force of the Convention if it had occurred later) any public
official had been involved in any manner – by action or omission – in the
unacknowledged deprivation of liberty of any individual or transport of any
individual so deprived of their liberty, including where such deprivation of
liberty may have occurred by or at the instigation of any foreign agency,
Lithuania responded in the negative.
2. Parliamentary Assembly’s inquiry - the Marty Inquiry
269. On 1 November 2005 the PACE launched an investigation into
allegations of secret detention facilities being run by the CIA in many
member states, for which Swiss Senator Dick Marty was appointed
rapporteur.
On 15 December 2005 the Parliamentary Assembly requested an opinion
from the Venice Commission on the legality of secret detention in the light
of the member states’ international legal obligations, particularly under the
European Convention on Human Rights.
(a) The 2006 Marty Report
270. On 7 June 2006 Senator Dick Marty presented to the PACE his first
report prepared in the framework of the investigation launched on
1 November 2005 (see paragraph 266 above), revealing what he called a
global “spider’s web” of CIA detentions and transfers and alleged collusion
in this system by 14 Council of Europe member states. The document, as
published by the PACE, was entitled “Alleged secret detentions and
unlawful inter-state transfers of detainees involving Council of Europe
member states” (Doc. 10957) and commonly referred to as “the 2006 Marty
Report”. The report explained in detail the CIA methodology of the CIA
extraordinary rendition operations and the so-called “global spider’s web”
of routes taken by the CIA planes executing rendition missions. The report
did not refer to Lithuania.
271. Chapter 1.8, in paragraph 22 stated:
“22. There is no formal evidence at this stage of the existence of secret CIA
detention centres in Poland, Romania or other Council of Europe member states, even
though serious indications continue to exist and grow stronger. Nevertheless, it is
clear that an unspecified number of persons, deemed to be members or accomplices of
terrorist movements, were arbitrarily and unlawfully arrested and/or detained and
transported under the supervision of services acting in the name, or on behalf, of the
American authorities. These incidents took place in airports and in European airspace,
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and were made possible either by seriously negligent monitoring or by the more or
less active participation of one or more government departments of Council of Europe
member states.”
272. Chapter 6, entitled “Attitude of governments”, stated, among other
things, the following:
“230. It has to be said that most governments did not seem particularly eager to
establish the alleged facts. The body of information gathered makes it unlikely that
European states were completely unaware of what, in the context of the fight against
international terrorism, was happening at some of their airports, in their airspace or at
American bases located on their territory. Insofar as they did not know, they did not
want to know. It is inconceivable that certain operations conducted by American
services could have taken place without the active participation, or at least the
collusion, of national intelligence services. If this were the case, one would be
justified in seriously questioning the effectiveness, and therefore the legitimacy, of
such services. The main concern of some governments was clearly to avoid disturbing
their relationships with the United States, a crucial partner and ally. Other
governments apparently work on the assumption that any information learned via their
intelligence services is not supposed to be known.”
273. Chapter 11 contained conclusions. It stated, inter alia, the
following:
“280. Our analysis of the CIA rendition’ programme has revealed a network that
resembles a ‘spider’s web’ spun across the globe. The analysis is based on official
information provided by national and international air traffic control authorities, as
well as other information including from sources inside intelligence agencies, in
particular the American. This ‘web’, shown in the graphic, is composed of several
landing points, which we have subdivided into different categories, and which are
linked up among themselves by civilian planes used by the CIA or military aircraft.
...
282. In two European countries only (Romania and Poland), there are two other
landing points that remain to be explained. Whilst these do not fall into any of the
categories described above, several indications lead us to believe that they are likely
to form part of the ‘rendition circuits’. These landings therefore do not form part of
the 98% of CIA flights that are used solely for logistical purposes, but rather belong to
the 2% of flights that concern us the most. These corroborated facts strengthen the
presumption – already based on other elements – that these landings are detainee
drop-off points that are near to secret detention centres.
...
287. Whilst hard evidence, at least according to the strict meaning of the word, is
still not forthcoming, a number of coherent and converging elements indicate that
secret detention centres have indeed existed and unlawful inter-state transfers have
taken place in Europe. I do not set myself up to act as a criminal court, because this
would require evidence beyond reasonable doubt. My assessment rather reflects a
conviction based upon careful examination of balance of probabilities, as well as upon
logical deductions from clearly established facts. It is not intended to pronounce that
the authorities of these countries are ‘guilty’ for having tolerated secret detention
sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive
obligation to diligently investigate any serious allegation of fundamental rights
violations.
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133
288. In this sense, it must be stated that to date, the following member States could
be held responsible, to varying degrees, which are not always settled definitively, for
violations of the rights of specific persons identified below (respecting the
chronological order as far as possible):
- Sweden, in the cases of Ahmed Agiza and Mohamed Alzery;
- Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle,
Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the
‘Algerian six’);
- The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam
Mohamed;
- Italy, in the cases of Abu Omar and Maher Arar;
- “The former Yugoslav Republic of Macedonia”, in the case of Khaled El-Masri;
- Germany, in the cases of Abu Omar, of the “Algerian six”, and Khaled El-Masri;
- Turkey, in the case of the “Algerian six”.
289. Some of these above mentioned states, and others, could be held responsible
for collusion – active or passive (in the sense of having tolerated or having been
negligent in fulfilling the duty to supervise) - involving secret detention and unlawful
inter-state transfers of a non-specified number of persons whose identity so far
remains unknown:
- Poland and Romania, concerning the running of secret detention centres;
- Germany, Turkey, Spain and Cyprus for being ‘staging points’ for flights
involving the unlawful transfer of detainees.”
(b) The 2007 Marty Report
274. On 11 June 2007 the PACE (Committee on Legal Affairs and
Human Rights) adopted the second report prepared by Senator Marty (“the
2007 Marty Report”) (doc. 11302.rev.), revealing that high-value detainees
had been held in Romania and in Poland in secret CIA detention centres
during the period from 2002 to 2005. The report did not rule out the
possibility that the CIA secret detention facilities might also have existed in
other Council of Europe member states.
The report relied, inter alia, on the cross-referenced testimonies of over
thirty serving and former members of intelligence services in the US and
Europe, and on a new analysis of computer “data strings” from the
international flight planning system.
Lithuania was not mentioned in the document. However, the PACE
urged the States to conduct national investigations of the alleged
implementation of the covert CIA programme of detention and interrogation
of suspected terrorists, and proposed that the democratic control and
supervision of secret services be strengthened.
275. The introductory remarks referring to the establishment of facts and
evidence gathered, read, in so far as relevant:
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“7. There is now enough evidence to state that secret detention facilities run by the
CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.
These two countries were already named in connection with secret detentions by
Human Rights Watch in November 2005. At the explicit request of the American
government, The Washington Post simply referred generically to ‘eastern European
democracies’, although it was aware of the countries actually concerned. It should be
noted that ABC did also name Poland and Romania in an item on its website, but their
names were removed very quickly in circumstances which were explained in our
previous report. We have also had clear and detailed confirmation from our own
sources, in both the American intelligence services and the countries concerned, that
the two countries did host secret detention centres under a special CIA programme
established by the American administration in the aftermath of 11 September 2001 to
“kill, capture and detain” terrorist suspects deemed to be of ‘high value’. Our findings
are further corroborated by flight data of which Poland, in particular, claims to be
unaware and which we have been able to verify using various other documentary
sources.
8. The secret detention facilities in Europe were run directly and exclusively by the
CIA. To our knowledge, the local staff had no meaningful contact with the prisoners
and performed purely logistical duties such as securing the outer perimeter. The local
authorities were not supposed to be aware of the exact number or the identities of the
prisoners who passed through the facilities – this was information they did not ‘need
to know.’ While it is likely that very few people in the countries concerned, including
in the governments themselves, knew of the existence of the centres, we have
sufficient grounds to declare that the highest state authorities were aware of the CIA’s
illegal activities on their territories.
...
10. In most cases, the acts took place with the requisite permissions, protections or
active assistance of government agencies. We believe that the framework for such
assistance was developed around NATO authorisations agreed on 4 October 2001,
some of which are public and some of which remain secret. According to several
concurring sources, these authorisations served as a platform for bilateral agreements,
which – of course – also remain secret.
11. In our view, the countries implicated in these programmes have failed in their
duty to establish the truth: the evidence of the existence of violations of fundamental
human rights is concrete, reliable and corroborative. At the very least, it is such as to
require the authorities concerned at last to order proper independent and thorough
inquiries and stop obstructing the efforts under way in judicial and parliamentary
bodies to establish the truth. International organisations, in particular the Council of
Europe, the European Union and NATO, must give serious consideration to ways of
avoiding similar abuses in future and ensuring compliance with the formal and
binding commitments which states have entered into in terms of the protection of
human rights and human dignity.
12. Without investigative powers or the necessary resources, our investigations
were based solely on astute use of existing materials – for instance, the analysis of
thousands of international flight records – and a network of sources established in
numerous countries. With very modest means, we had to do real “intelligence” work.
We were able to establish contacts with people who had worked or still worked for the
relevant authorities, in particular intelligence agencies. We have never based our
conclusions on single statements and we have only used information that is confirmed
by other, totally independent sources. Where possible we have cross-checked our
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
135
information both in the European countries concerned and on the other side of the
Atlantic or through objective documents or data. Clearly, our individual sources were
only willing to talk to us on the condition of absolute anonymity. At the start of our
investigations, the Committee on Legal Affairs and Human Rights authorised us to
guarantee our contacts strict confidentiality where necessary. ... The individuals
concerned are not prepared at present to testify in public, but some of them may be in
the future if the circumstances were to change. ...”
276. In paragraph 30 of the report it is stressed that “the HVD
programme ha[d] depended on extraordinary authorisations – unprecedented
in nature and scope – at both national and international levels. In
paragraphs 75 and 83 it was added that:
“75. The need for unprecedented permissions, according to our sources, arose
directly from the CIA’s resolve to lay greater emphasis on the paramilitary activities
of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The
US Government therefore had to seek means of forging intergovernmental
partnerships with well-developed military components, rather than simply relying
upon the existing liaison networks through which CIA agents had been working for
decades.
...
83. Based upon my investigations, confirmed by multiple sources in the
governmental and intelligence sectors of several countries, I consider that I can assert
that the means to cater to the CIA’s key operational needs on a multilateral level were
developed under the framework of the North Atlantic Treaty Organisation (NATO).
...”
277. In paragraphs 112-122 the 2007 Marty Report referred to bilateral
agreements between the US and certain countries to host “black sites” for
high value detainees. This part of the document read, in so far as relevant, as
follows:
“112. Despite the importance of the multilateral NATO framework in creating the
broad authorisation for US counter-terrorism operations, it is important to emphasise
that the key arrangements for CIA clandestine operations in Europe were secured on a
bilateral level.
...
115. The bilaterals at the top of this range are classified, highly guarded mandates
for ‘deep’ forms of cooperation that afford – for example – ‘infrastructure’, ‘material
support and / or ‘operational security’ to the CIA’s covert programmes. This high-end
category has been described to us as the intelligence sector equivalent of ‘host nation’
defence agreements – whereby one country is conducting operations it perceives as
being vital to its own national security on another country’s territory.
116. The classified ‘host nation’ arrangements made to accommodate CIA ‘black
sites’ in Council of Europe member states fall into the last of these categories.
117. The CIA brokered ‘operating agreements’ with the Governments of Poland
and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities
on their respective territories. Poland and Romania agreed to provide the premises in
which these facilities were established, the highest degrees of physical security and
secrecy, and steadfast guarantees of non-interference.
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118. We have not seen the text of any specific agreement that refers to the holding
of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to
lay eyes on the classified documents in question or read the precise agreed language
because of the rigours of the security-of-information regime, itself kept secret, by
which these materials are protected.
119. However, we have spoken about the High-Value Detainee programme with
multiple well-placed sources in the governments and intelligence services of several
countries, including the United States, Poland and Romania. Several of these persons
occupied positions of direct involvement in and/or influence over the negotiations that
led to these bilateral arrangements being agreed upon. Several of them have
knowledge at different levels of the operations of the HVD programme in Europe.
120. These persons spoke to us upon strict assurances of confidentiality, extended
to them under the terms of the special authorisation I received from my Committee
last year. For this reason, in the interests of protecting my sources and preserving the
integrity of my investigations, I will not divulge individual names. Yet I can state
unambiguously that their testimonies - insofar as they corroborate and validate one
another – count as credible, plausible and authoritative.”
(c) The 2011 Marty Report
278. On 16 September 2011 the PACE (Committee on Legal Affairs and
Human Rights) adopted the third report prepared by Senator Marty, entitled
“Abuse of state secrecy and national security: obstacles to parliamentary
and judicial scrutiny of human rights violations” (“the 2011 Marty Report”),
which described the effects of, and progress in, national inquiries into
CIA secret detention facilities in some of the Council of Europe’s member
states.
279. The summary of the report read:
“Secret services and intelligence agencies must be held accountable for human
rights violations such as torture, abduction or renditions and not shielded from
scrutiny by unjustified resort to the doctrine of ‘state secrets’, according to the
Committee on Legal Affairs and Human Rights.
The committee evaluates judicial or parliamentary inquiries launched after two
major Assembly reports five years ago named European governments which had
hosted CIA secret prisons or colluded in rendition and torture (including Poland,
Romania, Lithuania, Germany, Italy, the United Kingdom and the former Yugoslav
Republic of Macedonia).
Prosecutors in Lithuania, Poland, Portugal and Spain are urged to persevere in
seeking to establish the truth and authorities in the United States are called on to
co-operate with them. The committee considers that it is possible to put in place
judicial and parliamentary procedures which protect ‘legitimate’ state secrets, while
still holding state agents accountable for murder, torture, abduction or other human
rights violations.”
280. Paragraphs 14-15 and 37-39 related to Lithuania. They read as
follows:
“14. In Lithuania, the prosecuting authorities launched a criminal investigation
following the revelations of the parliamentary inquiry concerning the existence of two
‘black sites’ in the country. The investigation drew in particular on information
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
137
published in February 2010 in the United Nations joint study on secret detention,
which was based on analysis of flight plans and ‘data strings’, analogous data to those
already used by us to discover the existence of ‘black sites’ in Poland and Romania.
The British NGO Reprieve also gave the Lithuanian [Prosecutor General] some
important elements in its letter of 21 September 2010. Reprieve presented information
according to which a “high-value detainee” known as Abu Zubaydah had been
detained secretly in Lithuania between 2004 and 2006, in the course of a journey
which had allegedly taken him from Thailand to Szymany in Poland, then to
Guantánamo Bay and Morocco. After his spell in Lithuania between spring 2004 and
September 2006, he was allegedly returned to Guantánamo Bay. But the Lithuanian
prosecuting authorities eventually suspended their investigation without any result -
despite protests by Amnesty International. Amnesty International considers that
numerous ‘obvious’ leads had not been followed up by the prosecutors, who in their
view also accepted too easily the limits imposed on their investigation by the
invocation of state secrecy. The prosecutor’s office, for its part, justifies its decision to
suspend the investigation by the statute of limitations for a possible abuse of authority
and by the refusal of the American authorities to provide the information requested.
We consider that the lack of co-operation of the American authorities, as noted before
in relation to the German, Italian and Polish authorities, raises a serious problem
indeed. This situation is also due to the attitude of those European governments,
which abandoned all control over the use of their own infrastructures they
unconditionally put at the disposal of the American administration, in the wake of the
acceptation of the implementation of Article 5 of the NATO treaty and of the
operative measures accepted by the members of the alliance. In this way, the
European governments effectively placed themselves in a position of reliance or even
dependence on the good will of the American authorities.
15. The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), in its report on the visit to Lithuania from
14-18 June 2010, published with the agreement of the Lithuanian authorities on
19 May 2011, provided an initial evaluation of the criminal investigation concerning
the secret prisons, raising critical questions as to the promptness of the investigation,
the comprehensiveness of its scope and its thoroughness. Most importantly, for this
report, the CPT pointed out that it “did not receive the specific information it
requested, either during the above-mentioned meeting or from the Lithuanian
authorities’ response of 10 September 2010. ... It is affirmed that more specific
information cannot be provided as the major part of the data gathered during the
investigation constitutes a state or service secret.”
The CPT has an impeccable track record, over 20 years, of keeping the
confidentiality of information received in the pursuit of its delicate mission. It
publishes only the final report, and only upon the request of the national authorities. It
is therefore unacceptable, in my view, that even the CPT did not get access to the
information required in order to determine, in accordance with its mandate, whether
the investigation by the Lithuanian prosecutor’s office into the serious torture
allegations in question was performed with due diligence, as required both by the
European Convention against Torture and Inhuman and Degrading Treatment and the
European Convention on Human Rights.
...
37. In Lithuania, the Seimas finally undertook a fairly serious inquiry, following
some initial hesitations. Indeed, when ABC News caused an outcry by mentioning
anonymous sources linked with the CIA which claimed that Lithuania had provided a
site outside Vilnius where ‘high-value detainees’ were held up to the end of 2005, the
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chairperson of the parliamentary [Committee on National Security and Defence],
Mr Arvydas Anušauskas, initiated a preliminary inquiry. The fairly swift conclusion
presented at a joint meeting of that committee with the committee on external
relations was that there was not enough evidence to justify the opening of a formal
parliamentary inquiry. But on the occasion of the visit of the Council of Europe
Commissioner for Human Rights, Thomas Hammarberg, in October 2009, the
Commissioner and the President of Lithuania, Ms Grybauskaitė, publicly expressed
scepticism about the preliminary inquiry. On 5 November 2009, the Lithuanian
Parliament finally instructed the [Committee on National Security and Defence] to
undertake a full parliamentary inquiry, which yielded its results as early as
22 December that year. Despite the short time allowed, the findings were quite
substantial: Lithuanian agents had participated in the American programme of transfer
of prisoners and secret prisons; it was possible to trace at least six landings of aircraft
used in this programme. The CIA asked the Lithuanian secret service (SSD) for
assistance in preparing places of detention for persons suspected of activities linked
with terrorism, and two locations are said to have actually been prepared for this
purpose: the first had apparently never been used while the investigation was unable
to establish whether people had actually been held prisoner at the second (at
Antaviliai on the outskirts of Vilnius). But it reportedly emerged that the CIA agents
had been able to use it as they pleased without the slightest oversight by the SSD at
certain periods. Finally the investigation was also unable to establish whether the
state’s top leaders were informed of this co-operation. The investigation caused a
spate of resignations including those of the SSD chief Povilas Malakauskas and
Foreign Affairs Minister Vygaudas Ušackas. The main recommendation of the
parliamentarians’ report was to open the judicial investigation mentioned above,
currently impeded by complete lack of co-operation from the US authorities.
38. During the parliamentary inquiry, members of the commission were able to visit
the two sites in question but the authorities did not allow access for media and civil
society representatives.
39. However, the CPT was able to tour the two sites during a visit to Lithuania
between 14 and 18 June 2010. The report on the visit was published with the consent
of the Lithuanian authorities on 19 May 2011. The CPT concluded that “the premises
did not contain anything that was highly suggestive of a context of detention; at the
same time, both of the facilities could be adapted for detention purposes with
relatively little effort.”
B. European Parliament
1. The Fava Inquiry
281. On 18 January 2006 the European Parliament set up a Temporary
Committee on the alleged use of European countries by the CIA for the
transportation and illegal detention of prisoners (“TDIP”) and appointed
Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the
alleged existence of CIA prisons in Europe. The Fava Inquiry held
130 meetings and sent delegations to the former Yugoslav Republic of
Macedonia, the United States, Germany, the United Kingdom, Romania,
Poland and Portugal.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
139
It identified at least 1,245 flights operated by the CIA in European
airspace between the end of 2001 and 2005.
282. In the course of its work, the TDIP analysed specific cases of
extraordinary rendition. According to the Fava Report, these cases
“involved the illegal transport of a prisoner by the secret services, or other
specialist services, of a third country (including, but not exclusively, the
CIA and other American security services) to various locations, outside any
judicial oversight, where the prisoners have neither fundamental rights nor
those guaranteed by various international conventions, such as all habeas
corpus procedures, the right of the defence to be assisted by a lawyer, the
right to due process within a reasonable time, etc.”
The TDIP studied in detail the following cases of extraordinary
rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri;
Maher Arar; Mohammed El-Zari; Ahmed Agiza; the ‘Six Algerians’ from
Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim
Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and
Martin Mubanga.
The TDIP met the victims themselves, their lawyers, the heads of
national judicial or parliamentary bodies responsible for specific cases of
extraordinary rendition, representatives of European and international
organisations or institutions, journalists who followed these cases,
representatives of non-governmental organisations, experts in this area
either during committee meetings or during official delegation visits.
283. On 30 January 2007 the final report of the Fava Inquiry was
published. As far as Lithuania was concerned, the report noted that:
(1) Lithuania provided no written response to the committee’s invitation
to cooperate;
(2) official representatives of Lithuania did not receive any request for
meetings with the investigators of the TDIP Committee;
3) Lithuania did not provide the investigators with anything useful.
The Working Document No. 8 on the companies linked to the CIA,
aircraft used by the CIA and the European countries in which CIA aircraft
have made stopovers prepared during the work of TDIP and attached to the
Fava Report, contained an analysis of CIA flights having stopped over in
the European Union countries.
It stated that one CIA-operated aircraft, registered N8213G, made one
stopover in Lithuania. It appears from the materials of the Seimas inquiry
that the flight in question took place on 4 February 2003 made a stopover in
Vilnius airport en route to Warsaw, Poland (see paragraph 173 above).
The relevant section of the Working Document No. 8 read, in so far as
relevant, as follows:
“Total number of stopovers of CIA aircraft in Lithuanian airports: 1
Total number of Lithuanian airports involved
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1 airport involved
List of Lithuanian airports
Vilnius (1).
Total number of CIA aircraft having stopped over in Lithuania
1 different CIA aircraft.
List of CIA aircraft (Registration Numbers) having stopped over in Lithuania:
N8213G.
Total number of stopovers in Lithuania for each CIA aircraft and relevant details of
specific aircraft: N8213G: 1 stopover in Lithuania”
284. The Fava Report was approved by the European Parliament with
382 votes in favour, 256 against with 74 abstentions on 14 February 2007.
2. The 2007 European Parliament Resolution
285. On 14 February 2007, following the examination of the Fava
Report, the European Parliament adopted the Resolution on the alleged use
of European countries by the CIA for the transportation and illegal detention
of prisoners (2006/22009INI) (“the 2007 EP Resolution”). It did not refer to
Lithuania.
In its general part the resolution referred, among other things, to an
“informal transatlantic meeting” that had taken place on 7 December 2005
and involved foreign ministers of the of European Union (“EU”) and North
Atlantic Treaty Organisation (“NATO”) and US Secretary of State
Condoleezza Rice. The relevant section read as follows:
“The European Parliament,
...
L. whereas the Temporary Committee has obtained, from a confidential source,
records of the informal transatlantic meeting of European Union (EU) and North
Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of
State Condoleezza Rice, of 7 December 2005, confirming that Member States had
knowledge of the programme of extraordinary rendition, while all official
interlocutors of the Temporary Committee provided inaccurate information on this
matter,”
286. The passages regarding the EU member states read, in so far as
relevant:
“9. Deplores the fact that the governments of European countries did not feel the
need to ask the US Government for clarifications regarding the existence of secret
prisons outside US territory;
...
13. Denounces the lack of cooperation of many Member States, and of the Council
of the European Union towards the Temporary Committee; stresses that the behaviour
of Member States, and in particular the Council and its Presidencies, has fallen far
below the standard that Parliament is entitled to expect;
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
141
...
39. Condemns extraordinary rendition as an illegal instrument used by the United
States in the fight against terrorism; condemns, further, the condoning and concealing
of the practice, on several occasions, by the secret services and governmental
authorities of certain European countries;
...
43. Regrets that European countries have been relinquishing their control over their
airspace and airports by turning a blind eye or admitting flights operated by the CIA
which, on some occasions, were being used for extraordinary rendition or the illegal
transportation of detainees, and recalls their positive obligations arising out of the case
law of the European Court of Human Rights, as reiterated by the European
Commission for Democracy through Law (Venice Commission);
44. Is concerned, in particular, that the blanket overflight and stopover clearances
granted to CIA-operated aircraft may have been based, inter alia, on the NATO
agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on
4 October 2001;
...
48. Confirms, in view of the additional information received during the second part
of the proceedings of the Temporary Committee, that it is unlikely that certain
European governments were unaware of the extraordinary rendition activities taking
place in their territory;
...”
3. The Flautre Report and the 2012 European Parliament Resolution
287. On 11 September 2012 the European Parliament adopted a report
prepared by Hélène Flautre within the Committee on Civil Liberties, Justice
and Home Affairs (“LIBE Committee”) – “the Flautre Report”, highlighting
new evidence of secret detention centres and extraordinary renditions by the
CIA in European Union member states. The report, which came five years
after the Fava Inquiry, highlighted new abuses – notably in Romania,
Poland and Lithuania, but also in the United Kingdom and other countries –
and made recommendations to ensure proper accountability. The report
included the Committee on Foreign Affairs’ opinion and recommendations.
288. In the course of its work, on 27 March 2012, LIBE Committee held
a hearing on “What is new on the alleged CIA illegal detention and transfers
of prisoners in Europe”. At that hearing Mr Crofton Black from the Bureau
of Investigative Journalism was heard as an expert.
289. In April 2012 the LIBE delegation visited Lithuania. The applicant
submitted an extract from a publication (in French) authored by Helene
Flautre and Bertrand Verfaille entitled “Le programme secret de la CIA et le
Parlement Européen – histoire d’un forfait, histoire d’un sursaut”
describing the visit of the LIBE delegation to Lithuania. The LIBE
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
delegation visited the premises of Project No. 2, which were given the
following description
4
:
“[French – orginal]
Hélène Flautre décrit une sorte de « bâtiment dans le bâtiment », selon un principe
de double coque, des salles plus basses de plafond que d’autres, des marches qui
pourraient correspondre à celle que d’anciens prisonniers de la CIA se souviennent
d’avoir empruntées, alors que leurs yeux étaient bandés. Le bâtiment est équipé d’un
énorme appareil de conditionnement d’air et d’un système de pompage d’eau, dont on
ne comprend pas bien l’utilité. ...
[English translation]
Hélène Flautre described a kind of ‘building within the building’, a double-shell
structure, some rooms with lower ceilings than the others and steps which could
correspond to those which former prisoners remember taking when blindfolded. The
building has an enormous air-conditioning system and a water-pumping system, the
purpose of which is not evident.”
290. Following the examination of the Report the European Parliament
adopted, on 11 September 2012, the Resolution on alleged transportation
and illegal detention of prisoners in European countries by the CIA:
follow-up
of
the
European
Parliament
TDIP
Committee
report
(2012/2033(INI)) (“the 2012 EP Resolution”).
Its general part, in so far as relevant, reads as follows:
“The European Parliament,
...
T. whereas the Lithuanian authorities have endeavoured to shed light on Lithuania’s
involvement in the CIA programme by carrying out parliamentary and judicial
inquiries; whereas the parliamentary investigation by the Seimas Committee on
National Security and Defence concerning the alleged transportation and confinement
of persons detained by the CIA on Lithuanian territory established that five
CIA-related aircraft landed in Lithuania between 2003 and 2005 and that two tailored
facilities suitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were
prepared at the request of the CIA; whereas the LIBE delegation thanks the
Lithuanian authorities for welcoming Members of the European Parliament to Vilnius
in April 2012 and allowing the LIBE delegation access to Project No. 2; whereas the
layout of the buildings and installations inside appears to be compatible with the
detention of prisoners; whereas many questions relating to CIA operations in
Lithuania remain open despite the subsequent judicial investigation conducted in 2010
and closed in January 2011; whereas the Lithuanian authorities have expressed their
readiness to re-launch investigations if other new information were to come to light,
and whereas the Prosecutor’s Office has offered to provide further information on the
criminal investigation in response to a written request from Parliament; ...”
291. Paragraph 14 of the 2012 EP Resolution, which refers to the
inquiries in Lithuania, reads:
“[The European Parliament],
4. Translation from French into English submitted by the applicant has been edited by the
Registry and certain editorial corrections made.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
143
...
“14. Notes that the parliamentary and judicial inquiries that took place in Lithuania
between 2009 and 2011 were not able to demonstrate that detainees had been secretly
held in Lithuania; calls on the Lithuanian authorities to honour their commitment to
reopen the criminal investigation into Lithuania’s involvement in the CIA programme
if new information should come to light, in view of new evidence provided by the
Eurocontrol data showing that plane N787WH, alleged to have transported Abu
Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and
Lithuania; notes that analysis of the Eurocontrol data also reveals new information
through flight plans connecting Romania to Lithuania, via a plane switch in Tirana,
Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on
26 March 2006; considers it essential that the scope of new investigations cover,
beyond abuses of power by state officials, possible unlawful detention and
ill-treatment of persons on Lithuanian territory; encourages the Prosecutor General’s
Office to substantiate with documentation the affirmations made during the LIBE
delegation’s visit that the ‘categorical’ conclusions of the judicial inquiry are that ‘no
detainees have been detained in the facilities of Projects No. 1 and No. 2 in Lithuania;
...”
4. The 2013 European Parliament Resolution
292. Having regard to the lack of response to the recommendations in
the 2012 EP Resolution on the part of the European Commission, on
10 October 2013 the EU Parliament adopted the Resolution on alleged
transportation and illegal detention of prisoners in European countries by
the CIA (2013/2702(RSP) (“the 2013 EP Resolution”).
Its general part read, in so far as relevant, as follows:
“The European Parliament,
...
F. whereas the Lithuanian authorities have reiterated their commitment to reopening
the criminal investigation into Lithuania’s involvement in the CIA programme if new
elements emerge, but still have not done so; whereas in their observations to the
ECtHR in the case of Abu Zubaydah, the Lithuanian authorities demonstrated critical
shortcomings in their investigations and a failure to grasp the meaning of the new
information; whereas Lithuania holds the presidency of the Council of the European
Union in the second half of 2013; whereas a complaint was submitted on
13 September 2013 to the Lithuanian Prosecutor General, calling for an investigation
into allegations that Mustafa al-Hawsawi, who is currently facing trial by military
commission at Guantánamo Bay, had been illegally transferred to, and secretly
detained and tortured in, Lithuania as part of a CIA-led programme; ...”
Paragraph 4, which concerns Lithuania, reads:
“[The European Parliament,]
...
4. Urges Lithuania to reopen its criminal investigation into CIA secret detention
facilities and to conduct a rigorous investigation considering all the factual evidence
that has been disclosed, notably regarding the ECtHR case of Abu Zubaydah
v Lithuania; asks Lithuania to allow the investigators to carry out a comprehensive
examination of the renditions flight network and contact persons publicly known to
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have organised or participated in the flights in question; asks the Lithuanian
authorities to carry out forensic examination of the prison site and analysis of phone
records; urges them to cooperate fully with the ECtHR in the cases of Abu Zubaydah
v Lithuania and HRMI v Lithuania; calls on Lithuania, in the context of reopening the
criminal investigation, to consider applications for status/participation in the
investigation from other possible victims; urges Lithuania to respond in full to
requests for information from other EU Member States, in particular the request for
information from the Finnish Ombudsman regarding a flight or flights that could link
Finland and Lithuania to a possible rendition route; urges the Lithuanian Prosecutor
General to carry out a criminal investigation into Mustafa al-Hawsawi’s complaint;
...”
5. The 2015 European Parliament Resolution
293. Following the publication of the 2014 US Senate Committee
Report (see paragraphs 21-23 and 69-88 above), on 11 February 2015 the
European Parliament adopted the Resolution on the US Senate Committee
Report on the use of torture by the CIA (2014/2997(RSP)) (“the 2015 EP
Resolution”).
The European Parliament, while noting that the applicant’s application
was pending before the ECHR, reiterated its calls on Member States to
“investigate the allegations that there were secret prisons on their territory
where people were held under the CIA programme, and to prosecute those
involved in these operations, taking into account all the new evidence that
has come to light”.
The European Parliament further expressed concern regarding the
“obstacles encountered by national parliamentary and judicial investigations
into some Member States’ involvement in the CIA programme”.
6. The October 2015 hearing before the LIBE
294. On 13 October 2015 a hearing was held before the LIBE
Committee on “Investigation of alleged transportation and illegal detention
of prisoners in European Countries by the CIA”. The aim of the hearing was
to analyse all past and ongoing parliamentary and judicial inquiries relating
to Member States’ involvement in the CIA programme. During the hearing
a research paper was presented by the Policy Department C on the latest
developments on Member States investigations into the CIA programme
titled: “A quest for accountability? EU and Member State inquiries into the
CIA Rendition and Secret Detention Programme”. The Committee also
heard a summary overview by Mr Crofton Black from the Bureau of
Investigative Journalism on what had been achieved with reference to CIA
operated secret prisons in Europe. In particular, Mr Black stated that since
the adoption of the 2012 EP Resolution and the publication of the 2014 US
Senate Committee Report the evidence had been conclusive that the CIA
had operated a prison in Lithuania from February 2005 to March 2006.
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145
7. The 2016 European Parliament Resolution
295. On 8 June 2016 the European Parliament adopted a follow-up
resolution to the 2015 EP Resolution (2016/2573(RSP)) (“the 2016 EP
Resolution”). In respect of Lithuania, the resolution states, in so far as
relevant, as follows:
“[The European Parliament,]
11. Urges Lithuania, Romania and Poland to conduct, as a matter of urgency,
transparent, thorough and effective criminal investigations into CIA secret detention
facilities on their respective territories, having taken into full consideration all the
factual evidence that has been disclosed, to bring perpetrators of human rights
violations to justice, to allow the investigators to carry out a comprehensive
examination of the renditions flight network and of contact people publicly known to
have organised or participated in the flights in question, to carry out forensic
examination of the prison sites and the provision of medical care to detainees held at
these sites, to analyse phone records and transfers of money, to consider applications
for status/participation in the investigation from possible victims, and to ensure that
all relevant crimes are considered, including in connection with the transfer of
detainees, or to release the conclusions of any investigations undertaken to date;
...
17. Notes that the data collected during the Lithuanian Parliamentary Committee on
National Security and Defence (Seimas CNSD) inquiry into Lithuania’s involvement
in the CIA’s secret detention programme has not been made public, and calls for the
release of the data;”
C. The 2007 ICRC Report
296. The ICRC made its first written interventions to the US authorities
in 2002, requesting information on the whereabouts of persons allegedly
held under US authority in the context of the fight against terrorism. It
prepared two reports on undisclosed detention on 18 November 2004 and
18 April 2006. These reports still remain classified.
297. After the US President publicly confirmed on 6 September 2006
that 14 terrorist suspects (“high value detainees”) – including the applicant –
detained under the CIA detention programme had been transferred to the
military authorities in the US Guantánamo Bay Naval Base (see
paragraph 58 above), the ICRC was granted access to those detainees and
interviewed them in private from 6 to 11 October and from
4 to 14 December 2006. On this basis, it drafted its Report on the Treatment
of Fourteen “High Value Detainees” in CIA Custody of February 2007 –
“the 2007 ICRC Report” – which related to the CIA rendition programme,
including arrest and transfers, incommunicado detention and other
conditions and treatment. The aim of the report, as stated therein, was to
provide a description of the treatment and material conditions of detention
of the fourteen detainees concerned during the period they had been held in
the CIA programme.
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The report was (and formally remains) classified as “strictly
confidential”. It was published by The New York Review of Books on
6 April 2009 and further disseminated via various websites, including the
ACLU’s site.
298. Extracts from the 2007 ICRC Report giving a more detailed
account of the applicant’s and other HVDs’ treatment in CIA custody can be
found in Husayn (Abu Zubaydah) v. Poland (cited above, §§ 101-104
and 276).
299. The sections relating to main elements of the HVD Programme,
routine procedures for the detainees’ transfers and their detention regime
read, in so far as relevant, as follows:
“1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM
... The fourteen, who are identified individually below, described being subjected, in
particular during the early stages of their detention, lasting from some days up to
several months, to a harsh regime employing a combination of physical and
psychological ill-treatment with the aim of obtaining compliance and extracting
information. This regime began soon after arrest, and included transfers of detainees
to multiple locations, maintenance of the detainees in continuous solitary confinement
and incommunicado detention throughout the entire period of their undisclosed
detention, and the infliction of further ill-treatment through the use of various methods
either individually or in combination, in addition to the deprivation of other basic
material requirements.
...
2. ARREST AND TRANSFER
... Throughout their detention, the fourteen were moved from one place to another
and were allegedly kept in several different places of detention, probably in several
different countries. The number of locations reported by the detainees varied, however
ranged from three to ten locations prior to their arrival in Guantánamo in
September 2006.
The transfer procedure was fairly standardised in most cases. The detainee would be
photographed, both clothed and naked prior to and again after transfer. A body cavity
check (rectal examination) would be carried out and some detainees alleged that a
suppository (the type and the effect of such suppositories was unknown by the
detainees), was also administered at that moment.
The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones
would be placed over his ears, through which music would sometimes be played. He
would be blindfolded with at least a cloth tied around the head and black goggles. In
addition, some detainees alleged that cotton wool was also taped over their eyes prior
to the blindfold and goggles being applied. The detainee would be shackled by hands
and feet and transported to the airport by road and loaded onto a plane. He would
usually be transported in a reclined sitting position with his hands shackled in front.
The journey times obviously varied considerably and ranged from one hour to over
twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if
necessary was obliged to urinate or defecate into the diaper. On some occasions the
detainees were transported lying flat on the floor of the plane and/or with their hands
cuffed behind their backs. When transported in this position the detainees complained
of severe pain and discomfort.
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147
In addition to causing severe physical pain, these transfers to unknown locations and
unpredictable conditions of detention and treatment placed mental strain on the
fourteen, increasing their sense of disorientation and isolation. The ability of the
detaining authority to transfer persons over apparently significant distances to secret
locations in foreign countries acutely increased the detainees’ feeling of futility and
helplessness, making them more vulnerable to the methods of ill-treatment described
below.
...[T]hese transfers increased the vulnerability of the fourteen to their interrogation,
and was performed in a manner (goggles, earmuffs, use of diapers, strapped to
stretchers, sometimes rough handling) that was intrusive and humiliating and that
challenged the dignity of the persons concerned. As their detention was specifically
designed to cut off contact with the outside world and emphasise a feeling of
disorientation and isolation, some of the time periods referred to in the report are
approximate estimates made by the detainees concerned. For the same reasons, the
detainees were usually unaware of their exact location beyond the first place of
detention in the country of arrest and the second country of detention, which was
identified by all fourteen as being Afghanistan. ...
1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO
DETENTION
Throughout the entire period during which they were held in the CIA detention
program – which ranged from sixteen months up to almost four and a half years and
which, for eleven of the fourteen was over three years – the detainees were kept in
continuous solitary confinement and incommunicado detention. They had no
knowledge of where they were being held, no contact with persons other than their
interrogators or guards. Even their guards were usually masked and, other than the
absolute minimum, did not communicate in any way with the detainees. None had any
real – let alone regular – contact with other persons detained, other than occasionally
for the purposes of inquiry when they were confronted with another detainee. None
had any contact with legal representation. The fourteen had no access to news from
the outside world, apart from in the later stages of their detention when some of them
occasionally received printouts of sports news from the internet and one reported
receiving newspapers.
None of the fourteen had any contact with their families, either in written form or
through family visits or telephone calls. They were therefore unable to inform their
families of their fate. As such, the fourteen had become missing persons. In any
context, such a situation, given its prolonged duration, is clearly a cause of extreme
distress for both the detainees and families concerned and itself constitutes a form of
ill-treatment.
In addition, the detainees were denied access to an independent third party. ...
1.3. OTHER METHODS OF ILL-TREATMENT
... [T]he fourteen were subjected to an extremely harsh detention regime,
characterised by ill-treatment. The initial period of interrogation, lasting from a few
days up to several months was the harshest, where compliance was secured by the
infliction of various forms of physical and psychological ill-treatment. This appeared
to be followed by a reward based interrogation approach with gradually improving
conditions of detention, albeit reinforced by the threat of returning to former methods.
...
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1.4. FURTHER ELEMENTS OF THE DETENTION REGIME
The conditions of detention under which the fourteen were held, particularly during
the earlier period of their detention, formed an integral part of the interrogation
process as well as an integral part of the overall treatment to which they were
subjected as part of the CIA detention program. This report has already drawn
attention to certain aspects associated with basic conditions of detention, which were
clearly manipulated in order to exert pressure on the detainees concerned.
In particular, the use of continuous solitary confinement and incommunicado
detention, lack of contact with family members and third parties, prolonged nudity,
deprivation/restricted provision of solid food and prolonged shackling have already
been described above.
The situation was further exacerbated by the following aspects of the detention
regime:
• Deprivation of access to the open air
• Deprivation of exercise
• Deprivation of appropriate hygiene facilities and basic items in pursuance of
interrogation
• Restricted access to the Koran linked with interrogation.
These aspects cannot be considered individually, but must be understood as forming
part of the whole picture. As such, they also form part of the ill-treatment to which the
fourteen were subjected. ...”
D. The 2010 UN Joint Study
300. On 19 February 2010 the Human Rights Council of United Nations
Organisation released the “Joint Study on Global Practices in Relation to
Secret Detention in the Context of Countering Terrorism of the Special
Rapporteur on the Promotion and protection of Human Rights and
Fundamental Freedoms while Countering Terrorism” – “the 2010 UN Joint
Study” (A/HRC/1342).
301. In the summary, the experts explained their methodology as
follows:
“In conducting the present study, the experts worked in an open, transparent
manner. They sought inputs from all relevant stakeholders, including by sending a
questionnaire to all States Members of the United Nations. Several consultations were
held with States, and the experts shared their findings with all States concerned before
the study was finalized. Relevant ехсerpts of the report were shared with the
concerned States on 23 and 24 December 2009.
In addition to United Nations sources and the responses to the questionnaire from
44 States, primary sources included interviews conducted with persons who had been
held in secret detention, family members of those held captive and legal
representatives of detainees. Flight data were also used to corroborate information. In
addition to the analysis of the policy and legal decisions taken by States, the aim of
the study was also to illustrate, in concrete terms, what it means to be secretly
detained, how secret detention can facilitate the practice of torture or inhuman and
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
149
degrading treatment, and how the practice of secret detention has left an indelible
mark on the victims, and on their families as well.”
302. They described their approach to the States’ complicity in the secret
detention as follows:
“The experts also address the level of involvement and complicity of a number of
countries.
For purposes of the study, they provide that a State is complicit in the secret
detention of a person when it (a) has asked another State to secretly detain a person;
(b) knowingly takes advantage of the situation of secret detention by sending
questions to the State detaining the person, or solicits or receives information from
persons kept in secret detention; (c) has actively participated in the arrest and/or
transfer of a person when it knew, or ought to have known, that the person would
disappear in a secret detention facility, or otherwise be detained outside the legally
regulated detention system; (d) holds a person for a short time in secret detention
before handing them over to another State where that person will be put in secret
detention for a longer period; and (e) has failed to take measures to identify persons or
airplanes that were passing through its airports or airspace after information of the
CIA programme involving secret detention has already been revealed.”
303. In relation to Lithuania the report stated, among other things, the
following:
“120. With regard to Europe, ABC News recently reported that Lithuanian officials
had provided the CIA with a building where as many as eight terrorist suspects were
held for more than a year, until late 2005, when they were moved because of public
disclosure of the programme. More details emerged in November 2009 when ABC
News reported that the facility was built inside an exclusive riding academy in
Antaviliai. Research for the present study, including data strings relating to Lithuania,
appears to confirm that Lithuania was integrated into the secret detention programme
in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from
Bagram, on 20 September 2004, the same day that 10 detainees previously held in
secret detention, in a variety of countries, were flown to Guantánamo; the second,
from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius
customarily used airports of destination in different countries altogether, excluding
any mention of a Lithuanian airport as an alternate or back-up landing point.
121. On 25 August 2009, the President of Lithuania announced that her
Government would investigate allegations that Lithuania had hosted a secret detention
facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into
the allegation of the existence of a CIA secret detention on Lithuanian territory. In its
submission for the present study, the Government of Lithuania provided the then draft
findings of this investigation, which in the meantime had been adopted by the full
Parliament. In its findings, the Seimas Committee stated that the State Security
Department (SSD) had received requests to ‘equip facilities in Lithuania suitable for
holding detainees’. In relation to the first facility, the Committee found that
‘conditions were created for holding detainees in Lithuania’. The Committee could
not conclude, however, that the premises were also used for that purpose. In relation
to the second facility, the Committee found that:
‘The persons who gave testimony to the Committee deny any preconditions for and
possibilities of holding and interrogating detainees ... However, the layout of the
building, its enclosed nature and protection of the perimeter as well as fragmented
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presence of the SSD staff in the premises allowed for the performance of actions by
officers of the partners without the control of the SSD and use of the infrastructure at
their discretion’.
The report also found that there was no evidence that the SSD had informed the
President, the Prime Minister or other political leaders of the purposes and contents of
its cooperation with the CIA regarding these two premises.
122. While the experts welcome the work of the Seimas Committee as an important
starting point in the quest for truth about the role played by Lithuania in the secret
detention and rendition programme, they stress that its findings can in no way
constitute the final word on the country’s role. On 14 January 2010, President
Dalia Grybauskaitė rightly urged Lithuanian prosecutors to launch a deeper
investigation into secret CIA black sites held on the country’s territory without
parliamentary approval.
123. The experts stress that all European Governments are obliged under the
European Convention of Human Rights to investigate effectively allegations of torture
or cruel, inhuman or degrading treatment or punishment. Failure to investigate
effectively might lead to a situation of grave impunity, besides being injurious to
victims, their next of kin and society as a whole, and fosters chronic recidivism of the
human rights violations involved. The experts also note that the European Court of
Human Rights has applied the test of whether ‘the authorities reacted effectively to
the complaints at the relevant time’. A thorough investigation should be capable of
leading to the identification and punishment of those responsible for any ill treatment;
it ‘must be ‘effective’ in practice as well as in law, in particular in the sense that its
exercise must not be unjustifiably hindered by the acts or the omissions of the
authorities’. Furthermore, according to the European Court, authorities must always
make a serious attempt to find out what happened and ‘should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis of their decisions’.
124. According to two high-ranking Government officials at the time, revelations
about the existence of detention facilities in Eastern Europe in late 2005 by the
Washington Post and ABC News led the CIA to close its facilities in Lithuania and
Romania and move the Al-Qaida detainees out of Europe. It is not known where these
persons were transferred; they could have been moved into ‘war zone facilities’ in
Iraq and Afghanistan or to another black site, potentially in Africa. The experts were
not able to find the exact destination of the 16 high-value detainees between
December 2005 and their move to Guantánamo in September 2006. No other
explanation has been provided for the whereabouts of the detainees before they were
moved to Guantánamo in September 2006.”
X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE
GOVERNMENT
304. In response to the Court’s request to provide the transcripts of
testimony taken from witnesses in the criminal investigation in connection
with the implementation of Project No. 1 and Project No. 2, the
Government, in their written observations of 17 September 2015, provided a
summary description of the witness testimony in English. In order to protect
the witnesses’ identity and the secrecy of the investigation, their names were
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
151
anonymised by a single letter of the alphabet and their workplace and
function were described in a general manner.
However, in some instances several clearly different persons were
anonymised by the same letter; for instance, letter “A” designated a person
“who held an important political post”; an airport employee; “the officer”; a
person “who held a leading post at the SBGS”; and a person “who held a
leading post at the Intelligence Services”. Similarly, “B” designated a
person “who held a leading post at the Intelligence Services”; an airport
employee; “a politician who held an important political post”; an “SBGS
officer” and an “employee of another institution”. In sum, in many instances
a single letter designated various persons.
In view of the foregoing and for the sake of clarity, wherever necessary,
the respective witnesses are referred to below as “A”, “A1”, “A3”, etc.
The testimony of the witnesses who stated that they “did not remember
anything about 6 October 2005”; “did not know anything”; “found out about
the events at issue directly from the media”; “did not know anything about
any premises”; “could not remember anything of the day in issue”; and “did
not know about Project No. 1 and Project No. 2, did not see any premises
suitable for holding persons, “found out about the alleged detentions only
from ABC News” and “never heard about the establishment of such
premises” are omitted.
305. Until the public hearing, at which the Government withdrew their
request to restrict public access to their pleading of 17 September 2015 and
documents attached thereto, except to the extent necessary to ensure the
protection of personal data, these materials were treated as confidential
under Rule 33 § 2 (see also paragraphs 11 and 13 above).
306. The statements rendered below are produced verbatim from the
5
Government’s pleading .
Witness A
307. On 3 March 2010 a politician, A, who held an important political
post at the time of the relevant events into the circumstances of which the
pre-trial investigation was initiated, was questioned. The construction of
Project No. 2 was funded not by the Government but by the partners.
During the investigation it was established that there were up to ten
CIA-related flights in Palanga and Vilnius. The politician noted that during
the presidency of Rolandas Paksas, Mečys Laurinkus – the former head of
the SSD at that time – had applied for the temporary possibility of holding
persons suspected of terrorism, but the Head of State had replied in the
5. Note by the Court’s Registry: The material has been edited by the Registry and certain
editorial corrections made. The review does not affect the content of the documents.
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negative. He noted that it was a general inquiry and that there were such
inquiries in other countries too.
Witness A1
308. During the questioning on 26 March 2010, A1, who held a post at
the airport at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, indicated that he did not remember
if he was working on 6 October 2005. He noted that in cases of departure
through the governmental gates only the personal documents should be
checked.
As an airport employee, A1 noted, during the questioning in the pre-trial
investigation, that all vehicles leaving the territory of the airport, to which
access was limited, were inspected, paying particular attention to the
permission issued to the vehicles or leaving persons. If vehicles left through
the governmental gates, they were not inspected. In such cases a letter faxed
from the Seimas, the Presidency or the Government, with information as to
who, when and what type of vehicle would be leaving was always
submitted. Thus, only the documents of leaving persons were inspected.
Witness A2
309. On 13 April 2010 A2 was questioned for reasons other than the
office he held and not directly related to the circumstances being
investigated under the pre-trial investigation. The officer provided
information as regards Project No. 2 and information as regards the sale of
the premises of Project No. 2 in 2004. The officer observed that after the
sale he did not enter the premises and from the outside there were no big
changes to be seen. The premises consisted of residential premises of
240 sq. m., a stable of 350 sq. m. and an equestrian hall of 400 sq. m. After
the sale the officer interacted with the residents living nearby, but they had
not noticed any large equipment or vehicles with flashing lights.
Witness A3
310. During the questioning on 15 April 2010, A3, who had held a
leading post at the SGPS at the time of the relevant events into the
circumstances of which the pre-trial investigation was initiated, testified that
there were no requests not to inspect passengers of arriving aircraft. It was
also noted that customs would perform cargo control. The SGPS could
check only personal documents.
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153
Witness A4
311. On 11 June 2010, A, who held a leading post at the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned.
The officer confirmed that Project No. 1 belonged to the Ministry of
Foreign Affairs, and the SSD had used it under the agreement. The officer
noted that he had never visited the said auxiliary building of Project No. 1.
As regards Project No. 2 the officer noted that he did not know anything
about it until the premises were turned into the Training Centre of the SSD.
He visited the building for the first time in 2007, but did not see any
premises that would be suitable for forced restriction of freedom of persons.
The officer had to interact with the representatives of international partners,
they had joint projects, but no one had ever applied for unlawful detention
of persons. There were no such discussions with other officers either. No
transportation to/from the airport, escorts or cargos were ever organised and
he did not know anything about it.
Witness B
312. On 17 February 2010, B, who held a leading post at the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned.
The officer did not know anything about Project No. 2, which is now the
Training Centre. The officer had never been there. The officer mentioned
that there was talk that the SSD would acquire premises to establish the
Training Centre. The officer testified that he was familiar with the premises
of Project No. 1.
The officer frequently visited the premises of Project No. 1, where the
meetings with foreign partners were held, as the said premises were suited
better for these meetings. The officer remembered that once, maybe in
2002-2003, a repair had been carried out, but he did not know what
specifically had been repaired. The officer had never been in the second
building, which perhaps contained garages. The officer did not know about
any requests to hold or transport persons, he had never obtained such
information. To his knowledge, the SSD, when carrying out joint operations
with foreign partners, received funding from the partners either in money or
by technical means; however the officer did not know how it was recorded.
However, he also remembered that there was talk that the SSD had to be
provided with the premises for the establishment of the Training Centre.
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Witness B1
313. During the questioning on 25 March 2010, B1, who held a post at
the airport at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, did not remember anything about
the night of 6 October 2005 or the incident in question.
As an airport employee, B1 noted that the aim of the patrolling was to
ensure aviation security, i.e. to avoid violations of aviation security, to
ensure that persons had permissions, corresponding to the airport regime
areas, to ensure that vehicles did not violate traffic regulations and drove
with flashing lights on, and to ensure the transport escort in the territory of
the platform. The patrolling was shift work, and during one shift the
aviation security vehicles usually patrolled. If possible, for safety purposes
to observe normal procedure and to ensure that the members of the
maintenance staff at the plane had permissions, corresponding to the regime
area, a patrol would approach the plane. When the officers of the aviation
security approached the planes, they stopped at the red line 5-10 meters
away from the plane, which could not be crossed. The officers waited until
the plane passengers got on the bus. If there was cargo on the plane, and
unless there were call-outs or other planes landing, the officers waited until
the cargo was unloaded. However, the safety of the cargo was ensured by
the company maintaining the cargo.
Witness B2
314. On 8 April 2010 a politician, B2, who held an important political
post at the time of the relevant events into the circumstances of which the
pre-trial investigation was initiated, was questioned. The politician noted
that he was addressed as regards the transportation and holding of people in
Lithuania. As far as he understood, he was asked for his opinion in this
regard, whether he would have approved it, if it had taken place. The topic
of the conversation at the time was to aid the Americans in the fight against
terrorism. B2 did not approve of the idea. While holding his post, he did not
happen to hear, nor was he aware of any premises arranged for holding
people or certain flights.
Witness B3
315. During the questioning on 13 April 2010, B3, who held the post of
SGPS officer at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, noted that on 6 October 2005
at 5.15 a.m. an unplanned aircraft from Antalya landed. He wanted to
perform an inspection, to write down the number, to find out where the
aircraft was from, how many passengers there were, when it was to depart,
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
155
but a vehicle of Aviation Security stopped him from approaching. He noted
that some vehicle left the territory through the border control. He did not
remember the data of the vehicle. He did not write anything down.
Witness B4 (also referred to as “person B” by the Government)
316. During the questioning on 18 February 2010 an employee of
another institution (person B), able to provide valuable information due to
his post, testified that on 6 October 2005 a private non-commercial flight of
an aircraft “Boeing 737-200”, tail number N787WH, registered in the USA,
was recorded. It arrived from Tallinn without passengers at 4.54 a.m. and on
5.59 a.m. departed for Oslo. It arrived at Tallinn from Antalya. On the same
day at 3.58 p.m. another aircraft, model “Beech Be-9L F-90” tail number
N41AK registered in the USA departed for Glasgow with two passengers.
On 2 January 2005 an aircraft “CASA C-212” tail number N961BW
registered in the USA landed in Palanga from Flesland (Norway) and
departed for Simferopol (Ukraine). On 18 February 2005 an aircraft
“Boeing 737” tail number N787WH registered in the USA from Bucharest
to Copenhagen landed in Palanga. B4 noted that there were unplanned
flights, but they were quite rare. In case of training mainly Palanga Airport
was used, as at that airport there were fewer flights.
Witness C
317. On 19 February 2010, C, who held a leading post at the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned.
The officer noted that the work of officer D was delegated to him in June
2005. Officer D took officer C to the building in Project No. 1 where there
were two-container garages and premises for economic purposes. The SSD
administration premises were situated within the same territory. C was able
to confirm that the SSD did not have any public or classified documents
which could prove that the premises in Project No. 1 were used or arranged
as a prison or temporary detention facility. Personally the officer believed
that the said premises could not have been used for such purpose because
there was a window, residential houses were situated nearby, and one of
them was within a distance of 3-4 metres and another one right in front of it.
The officer found out about Project No. 2 only in 2007, when the Training
Centre began to operate there. The officer later visited it in connection with
his work. The officer did not see any premises suitable for holding or
detention of persons, he never heard of either.
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Witness C1
318. During the questioning on 17 March 2010, C1, who held a leading
post at the SGPS at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, testified that nobody applied
to the State Border Protection Service to ensure that marks were not put on.
C1 noted that the function of the SGPS at the airport was to check the
documents of those persons who crossed the State border. The SGPS did not
perform the inspection of the planes which landed. The customs officers
would inspect the cargo. When a plane landed a State border officer used to
approach the plane and to escort the bus to the building. All the passengers
would pass through passport control.
Witness C2 (also referred to as “person C” by the Government)
319. On 27 April 2010 an employee of another institution was
questioned (person C), as he could provide valuable information due to his
post. C2 noted that in 2002-2005 there were no incidents similar to that of
6 October 2005. C confirmed that there was some letter of the SSD of
5 October 2005 on the intended SSD measure. The SGPS received the letter
on 7 October [2005].
Witness D
320. On 18 February 2010, D, who held a leading post at the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned. The officer
participated in looking for the premises of Project No. 1 and arranging them.
Witness D1
321. On 9 March 2010, D1, who due to the duties performed was in
other ways connected to the circumstances investigated under the pre-trial
investigation, was questioned. The person arranged the premises in Project
No. 1. The repairs lasted for around a month. He could not remember the
exact works that were carried out.
Witness E
322. During the questioning on 18 February 2010, E, who held a leading
post at the SGPS at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, knew about the incident of
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6 October 2005 as he was informed about it at 6 a.m. by telephone. He
noted that a letter of the SSD on classified training had been submitted.
Witness E1
323. On 26 February 2010, E1, who held a leading post in the
Intelligence Services at the time of the relevant events into the
circumstances of which the pre-trial investigation was initiated, was
questioned. The officer noted that he had been at Project No. 2 and pointed
out that training took place there. The officer gave lectures there himself.
The officer did not know anything about any premises that were suitable for
detention. The officer had to directly communicate with foreign partners,
but there were no inquires as regards the terrorists. The officer also did not
know anything about the flights.
An officer E1, who held a leading post at the SSD, noted that he did not
know anything and that he visited Project No. 2, where, as he specified, the
training took place. He himself gave lectures there.
Witness F
324. During the questioning on 20 February 2010, F, who held a leading
post at the SGPS at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, noted that the aircraft
departed on 6 October 2005 at 6.05 a.m. The officer had not been informed
about it in advance. The officer also noted that the visibility outside was
poor.
Witness F1
325. During the questioning on 3 March 2010, F1, who held a leading
post at the airport at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, testified that the Operational
Services used to issue permissions.
F1 noted that the CAA supervised Aviation Security and checked the
work. The SSD also used to be in charge of aviation security. The officers
of the Intelligence service could enter the regime area only after Aviation
Security had been warned in written form about it in advance, also after the
permanent permissions, issued to the officers of the Intelligence Service,
who provided the airport with permanent maintenance, had been submitted,
or after the official passes of those officers had been provided. The duty of
the Aviation Security officers was to inspect the documents of the said
persons and to check whether they actually were the officers of the
Intelligence services. It was noted that Aviation Security had cooperated
with the SSD as well as with the other intelligence services.
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Witness G
326. During the questioning on 11 February 2010, G, who held a leading
post in the SGPS at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, testified that on 6 October
2005 there was an unplanned landing. The officer also noted that the
visibility outside was poor.
Witness G1
327. During the questioning on 23 February 2010, G1, who held a
leading post at the airport at the time of the relevant events into the
circumstances of which the pre-trial investigation was initiated, testified that
a request not to perform an inspection used to be submitted by the Ministry
of Transport and Communications of the Republic of Lithuania. The Patrol
Services of Aviation Security together with a subdivision of the Ministry of
the Interior used to control passage from/to the territory of Vilnius
International Airport.
As G1 noted, the Passenger Inspection Service of Aviation Security
would check the passengers and their cabin bags prior to entering the plane
in order to ensure the security of the plane and the passengers. While the
Patrol Services of Aviation Security, together with a department of the
Ministry of the Interior, would control the entry of means of transport into
the closed territory of the airport, the SGPS would check the passengers,
and Customs would deal with the inspection of luggage.
Witness G2
328. On 25 March 2010, G2, who held a leading post in the Intelligence
Services, associated with the premises of Project No. 2, was questioned. The
officer observed that the Training Centre had been moved into Project No. 2
in the middle of 2007. The Training Centre was a structural unit of the SSD,
where the introductory, qualification and special training was held. The
function of the material supply of the Training Centre was assigned to
another unit. There were no cells or other premises suitable for holding
persons in the Training Centre. The officer did not know about the source of
funding and other matters related to the arrangement of the premises. There
were no guard towers or security alarms in Project No. 2.
Witness H
329. During the questioning on 11 February 2010, H, who held a post as
SGPS officer at the time of the relevant events into the circumstances of
which the pre-trial investigation was initiated, testified that there was an
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159
unplanned landing and that a State border officer B went to perform an
inspection. As soon as a State border officer, H, learnt that he was not
allowed to perform the inspection, the officer applied to Aviation Security.
The Aviation Security Division made an inquiry as to whether they had
received any instructions and also noted that the leading officials of the
SGPS had been informed.
Witness H1
330. During the questioning on 17 February 2010, H1, who held a
leading post at the airport at the time of the relevant events into the
circumstances of which the pre-trial investigation was initiated, testified that
on 6 October 2005 classified training of the SSD with other States could
have taken place. The security of Vilnius International Airport might have
been informed about it. The SSD could have brought in and taken out
different letters without registering them. There were a lot of international
training courses, and the employee H1 could not therefore remember a
particular case. If H1 received any request, which was classified, he would
keep somebody relevant informed orally.
In 2005-2006 there were a lot of flights of the aircraft of NATO member
States carrying military and defence delegations in connection with the
security of the conferences of NATO Defence Ministers and Ministers for
Foreign Affairs in 2005-2006.
H1 noted that Aviation Security cooperated with all the Operational
Services of the country: those of the Police Department, the Customs
Department, the Security Department, the Second Investigation Department
under the Ministry of National Defence, the SGPS, the SSD, the SIS and the
intelligence services of other institutions. They used to perform certain acts
in the areas of limited access in the presence of Aviation Security officers or
in their absence. Aviation Security officers had a duty to inspect the
documents of those persons in order to ensure that they actually were the
officers of the Intelligence Services. The laws regulating the said special
services established their right to gain access to the objects. The officers of
the Intelligence Services could have access to the regime area after Aviation
Security had been warned about it in written form in advance, and also after
the permanent authorisations, issued to the officers of the Intelligence
services, who provided the airport with the permanent maintenance, had
been presented or after the official certificates of those services had been
presented.
H1 emphasised that the classified SSD training courses with the foreign
partners could have taken place and that the SSD could have informed
Aviation Security about it by a classified letter. Such letters used to be
registered by those institutions, which performed certain acts. There were
cases when secret services used to bring such letters and take them away
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after the acts had been performed. Such letters were not then registered at
the office of Aviation Security. The content of such letters could have
comprised State secrets. The content of those letters could have been
available only to those who had authorisations to work with the secret
information. After they had become acquainted with the said content, they
would inform orally other employees about it as far as was necessary. The
officers of Aviation Security were not always aware of the measures taken
by the special services at the airport, or in the area of limited access. There
were cases when only oral requests were submitted.
Witness K
331. On 4 May 2010, K, who held a leading post in the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned. This officer noted
that there had been a conversation with officer F as regards the possibility of
accepting foreign partners and how this should be organised. He thought
that the idea was to accept specialists coming for training. There were no
talks about detention or about the arrangement of such premises. The officer
was told that the premises were suggested for persons under witness
protection programmes. It was also pointed out that the military base could
be used. The conversations were abstract and there was no specific
information.
Witness L
332. L, who at the relevant period of time held a leading post in the
Intelligence Service, noted that he used to enter the territory controlled by
the Vilnius International Airport with a permanent pass. One could also
enter the territory with a temporary pass, but such persons could then only
enter the territory with an escort.
Witness M
333. On 6 April 2010, M, who held a leading post in the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned. The officer had told
officer D about the need to establish premises for the extradition of secret
collaborators. Officer M had communicated with the representatives of
foreign partners. The officer did not know exactly what the status of the
operation in Project No. 1 was. The officer stated that they had discussed an
idea with the partners to establish an intelligence support centre. They
needed premises where it could operate. N and O were assigned the task of
finding suitable premises. It was decided that the premises of Project No. 2
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161
were suitable. Partners used to cover all the expenses. M himself supervised
the arrangements process, but he could not provide many details. M noted
that there were no premises suitable for custody or detention of persons.
Meetings were held in the building. The supervision of the building was
carried out by N and O. They used to escort the partners. Due to the fact that
the partners’ plans slightly changed and the building was not exploited
fully, it was decided to use it for the establishment of the SSD Training
Centre. In 2005 there were 2-3 flights, communications equipment was
transported, parcels for partners and vice versa. The representative of
partners would apply for security when escorting. The SSD drafted a letter
to the airport administration, possibly to the SGPS for the officers to be
given access to the territory. The SSD officers escorted the cargo. The
officer did not remember where the communications equipment came
from – Vilnius International Airport or Palanga Airport – but there was
security organised before its transfer. Later the communications equipment
was taken away.
M told an officer S, who held a leading post, that there were partners’
requests to escort the cargo. M confirmed that it was possible; however, it
should have been agreed with Vilnius International Airport, and the SGPS.
The letters for that purpose were drafted.
Witness N
1. Questioning on 9 March 2010
334. On 9 March 2010, N, who held a post as an officer at the time of
the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. In 2003 N and O were assigned
to assist the partners. There was a direct order from M. The officer looked
for a place close to Vilnius for the acquisition of premises. Once they had
chosen the premises, the partners came to have a look at them. The officer
and O assisted the representative of the partners, who led the construction
work. There were administration and recreation areas, a pool table, table
football, darts, a TV, padded benches, a gym, and fitness equipment
installed; normally the officer did not have access to the administration area.
As regards the acquisition, establishment and maintenance of the building of
Project No. 2, no operation file was initiated. There were no premises
suitable for detention. N himself had free access to the premises; however,
he was not aware of the content of the operations that were carried out.
Persons did not arrive at the premises of Project No. 2 on their own. Always
somebody, N himself or O, used to meet those persons and to escort them
from the airport and back. If there was somebody on the premises of Project
No. 2, there was necessarily at least one officer: N himself, M or O. Even
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when there was nobody on the premises, N together with O supervised the
building.
N noted that in order to enter the airport a letter for the airport was to be
presented. He also noted that different persons used to come to the premises
of Project No. 2 more often in the beginning of 2005 and ceasing at the end
of the year. He used to supervise the premises together with officer O. He
himself did not notice if any equipment was transported from the premises.
He visited the premises, but not all the rooms, as they were used and there
was no reason for him to do that. Besides him, officers M and O were at the
building. There were no other officers there. He himself carried out
technical functions. In the second part of the year of 2005 officer M told
him that the protection of the building was to be entrusted to a unit in
charge.
2. Questioning on 16 March 2010
335. On 16 March 2010, N was questioned again. The officer noted that
various persons used to arrive at the premises of Project No. 2 – at the
beginning of 2005 more often, and at the end of 2005 it stopped. The officer
supervised the premises with O. In the second half of 2005 the officer M
told him that the execution of the supervision of the building needs was to
be entrusted to a unit in charge. N himself did not see whether there had
been any equipment carried away from the premises.
Once in 2005 or 2006 N escorted vehicles with the partners to Palanga,
the vehicles of the SSD remained and the partners drove towards the
aircraft. N himself did not see anything in particular. Then the escort went
back to Vilnius. If they needed to go, a letter would be written to the airport.
More than once the officer escorted the cargo from the airport, but usually
only from Vilnius International Airport. There used to be a specific letter
drafted for the airport.
Witness O
1. Questioning on 9 March 2010
336. On 9 March 2010, O, who held a leading post in the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned. He used to escort
partners to the airport and went to Palanga and back several times.
2. Questioning on 10 March 2010
337. On 10 March 2010 O was questioned again. In 2003 N told him
that it was necessary to find premises. O carried out technical operations.
They found the premises needed, which later were called the premises of
Project No. 2. Partners chose the premises. They had arrived several times.
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163
In the Spring of 2004 partners started to come. They themselves carried out
works, brought the material and the equipment in containers. It was
necessary to find a site for storage; they found a site and carried containers
there. There was a residential area, recreation area, administration area, a
gym, a room with table games, a room with padded benches and a TV, and a
kitchenette on the premises. O himself had not been to all of the premises.
The officer did not know who arrived at the premises and what they were
occupied with. They actively supervised the building until the second half
of 2005, then the number of visits decreased, the officers themselves were
there less often. O carried out the supervision of the building of Project
No. 2 in rotation together with N. O himself was there mostly during the
day and N at night. A file on the acquisition, repair and maintenance of the
building of Project No. 2 was not initiated. From his conversations with M,
O realised that Project No. 2 was an intelligence support centre. In the
beginning of 2006 the officer received an order from M that a cargo had to
be delivered to Palanga Airport. The officer went together with V and N.
They escorted the partners and drove several times to Palanga and back.
Some vehicles approached the aircraft, there was no inspection carried out
by the SGPS or the customs. They drove loaded with the cargo and returned
unloaded.
Witness P
338. On 1 April 2010, P, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. In 2002-2003 M told him that
the representatives of the partners came and proposed to organise a joint
operation, to establish premises in Lithuania for the protection of secret
collaborators. The officer M was asked to inform him when a particular
operation as regards the use of the premises was to be launched. However,
in the end it did not take place. M said that the partners most likely
abandoned the project. The premises were later used for the SSD needs [the
officer was referring to Project No. 1]. During the meetings held with the
representatives of the partners, the idea was raised as regards the
establishment of an integrated centre in which the SSD officers would be
trained and joint operations with partners would be carried out. A was
responsible for the support received for Project No. 1, in the form of
equipment or by other means. The officer did not know about any requests
to establish a prison. The officer offered a purely theoretical consideration
that in 2003 there might have been requests for assistance in the fight
against terrorism and acceptance of detainees, but it was purely theoretical.
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Witness Q
339. On 4 March 2010, Q, who held a leading post in the Intelligence
Services at the time of the relevant events into the circumstances of which
the pre-trial investigation was initiated, was questioned. He participated in
looking for the premises of Project No. 1.
Witness R
340. On 30 March 2010, R, who held a post in the Intelligence Services
at the time of the relevant events into the circumstances of which the
pre-trial investigation was initiated, was questioned. The officer never
visited the premises of Project No. 1, which were referred to in the
questions asked. The premises were established for the extradition of secret
collaborators. However, he was told that no prison existed. The Training
Centre was situated in Project No. 2, which he visited in 2008. M mentioned
to the officer R that the Training Centre was built in a joint project with the
partners.
R testified that he had never been to the premises of Project No. 1, about
which he was questioned. However, he noted that the premises were
arranged for the extradition of secret collaborators. An officer T also noted
that he had heard of the centre for the transfer of secret collaborators. An
officer S, who held a leading office, knew nothing about the repair of the
auxiliary premises of Project No. 1, its aims or funding resources. Only later
did he learn that the premises had been established for the operation, which
either ended or never took place.
Witness S
341. On 18 March 2010, S, who held a post in the Intelligence Services
at the time of the relevant events into the circumstances of which the pre-
trial investigation was initiated, was questioned. The officer was not aware
of the repairs carried out, its purpose or the financing sources of the
auxiliary premises situated in Project No. 1. He later found out that they
were preparing for an operation, which either ended or did not take place.
The SSD had been obliged to develop relations with the foreign partners in
compliance with the Resolution of 2002. There was a need to communicate
with more experienced partners, to learn from their experience and benefit
from such cooperation. During this period it was decided to establish an
intelligence support centre, which would be used in preparation for
operations and at the same time for the training of SSD employees. M was
in charge of the said sphere, thus S himself did not have any further
information. The officer was informed orally about the development in
cooperation with the partners as regards the regional intelligence centre.
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165
Around May 2004 M was informed that the building had been acquired.
M told that him that the partners had covered all the expenses. All
information about the centre was provided orally; no documents were
provided. There were all sorts of talks, but nothing about terrorists, no
enquiries and so on. Project No. 2 was established at the beginning of 2005.
The officer went to inspect the premises, but there were no areas suitable for
detention; there were recreation areas and administrative offices. The
building was used minimally as the partners were slow to take any decision
as regards the intelligence centre. Subsequently an agreement with the
partners was reached as regards the transfer of the building to the SSD.
There were only considerations as regards detention of terrorists, and no
requests as regards the detention of persons were received; in theory it was
only discussed with the leading officials, but they did not approve. M told
him that the requests were received from the partners to escort cargo. The
officer was told that they needed to coordinate it with the airport and the
SGPS, thus, specific letters had to be drafted. The officer himself had no
information about aircraft landing with terrorists.
Witness T
1. Questioning on 2 March 2010
342. On 2 March 2010, T, who held a post in Intelligence at the time of
the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer looked for premises
where safe facilities could be established for the extradition of secret
collaborators. However, all the premises were inadequate. D suggested
where it would be possible to arrange them and the premises were arranged
in Project No. 1.
2. Questioning on 16 March 2010
343. On 16 March 2010, T was questioned again. The officer noted that
they had been looking for premises for the centre to be used for the transfer
of the secret collaborators. The officer never escorted any cargo and did not
know anything about Project No. 2.
An Intelligence Service officer U noted that he looked for premises
together with T. In compliance with the instructions given by an officer, D,
in 2002 the premises were necessary for temporary accommodation and
protection of secret collaborators. U noted that while working at Project
No. 1 he thought that the premises were to be arranged for the transfer of
secret collaborators.
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Witness U
344. On 3 March 2010, U, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer carried out a task
together with T. They looked for premises for temporary accommodation
and protection of secret collaborators under the order of D of 2002.
Witness U1
345. On 8 March 2010, U1, who held a post in the Intelligence Services
at the time of the relevant events into the circumstances of which the
pre-trial investigation was initiated, was questioned. While working at
Project No. 1, the officer thought that the premises were established for the
transfer of secret collaborators. The officer considered that the premises in
the city centre were unsuitable for the detention of persons.
Witness V
346. On 5 March 2010, V, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer saw that the
building of Project No. 1 was being repaired, but he had no connection to
the said project. He had escorted other vehicles together with N in March
2006 to Palanga Airport. The officer arrived at the airport and the escorted
vehicle drove to the aircraft. The vehicle that drove off was loaded with
boxes of not less than 1 metre in length. They were carried by two persons.
The officer could not remember the exact number of boxes, but there were
not less than three of them. The unloading lasted for around 20-30 minutes.
He entered the airport together with M and N, who were standing
approximately 50 metres from the aircraft. The aircraft was not inspected.
The officer escorted M and N back from Palanga together with O. The
officer N told him that there was an operation taking place. The officer
knew that prior to going to the airport one of the officers had written a letter
to the airport in order for them to gain access to the airport.
Witness X
347. On 5 March 2010, X, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer participated in
arranging and implementing the repair works of the premises of Project
No. 1.
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167
Witness Y
348. On 8 March 2010, Y, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer participated in
repairing and arranging the premises of Project No. 1. The officer did not
see any unauthorised persons visiting the premises.
Witness Z
349. On 5 March 2010 Z, who held a post in the Intelligence Services at
the time of the relevant events into the circumstances of which the pre-trial
investigation was initiated, was questioned. The officer participated in
arranging and implementing the repair works of the premises of
Project No. 1.
XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT
A. The 2011 CPT Report
350. Among other evidence available to the Court was the 2011 CPT
Report on the CPT delegation’s visit to Lithuania that took place from 14 to
18 June 2010 and which involved inspections of various places of
deprivation of liberty – police, prison and psychiatric establishments. As
regards the alleged existence of the CIA secret detention facilities in
Lithuania, the central issue for the delegation was to try to assess the
effectiveness of the pre-trial investigation. However, the delegation
considered that it should also visit “the two tailored facilities” that had been
identified in the parliamentary inquiry as “Project No. 1” and “Project
No. 2”.
The CPT made the following findings of fact.
351. As regards the background of the CPT’s visit, the 2011 CPT Report
read:
“64. In August 2009, reports appeared in the media that secret detention facilities
for ‘high value’ terrorist suspects, operated by the Central Intelligence Agency (CIA)
of the United States, had existed in Lithuania until the end of 2005. According to
these reports, as many as eight persons were held in those facilities for more than a
year. The sources of this information were said to be former CIA officials directly
involved with or briefed on a programme of that Agency to detain and interrogate
suspected terrorists at sites abroad. Further, it was affirmed that CIA planes made
repeated flights into Lithuania during the period in question.
On 25 August 2009, the President of Lithuania announced that the above-mentioned
reports would be investigated. They were subsequently the subject of an investigation
(started in November) by the National Security and Defence Committee of the
Lithuanian Parliament. The findings of that Committee were endorsed by the
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Lithuanian Parliament on 19 January 2010, and a pre-trial investigation was launched
on 22 January by the Prosecutor General’s Office. That investigation was still
underway at the time of the CPT’s visit in June 2010.
65. In recent years there have been many allegations of secret detention of terror as
well as of the related phenomenon of unlawful inter-State transfers of such persons.
And on 6 September 2006, the President of the United States publicly acknowledged
that the CIA had been holding and questioning, in secret locations overseas, a number
of persons suspected of involvement in acts of terrorism.
The possible implication of European countries in the above-mentioned practices
has been examined within the framework of the Council of Europe and the European
Union, and reports from both the Council’s Parliamentary Assembly and the European
Parliament have affirmed that there has been collusion by certain of those countries.
66. As the CPT emphasised in its 17th General Report, secret detention can
certainly be considered to amount in itself to a form of ill-treatment, both for the
person detained and for members of his or her family. Further, the removal of
fundamental safeguards which secret detention entails – the lack of judicial control or
of any other form of oversight by an external authority and the absence of guarantees
such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment.
The interrogation techniques applied in the CIA-run overseas detention facilities
have certainly led to violations of the prohibition of torture and inhuman or degrading
treatment. Any doubts that might have existed on this subject were removed by the
publication on 24 August 2009 of a Special Review of CIA counterterrorism detention
and interrogation activities, dated 7 May 2004 and covering the period September
2001 to October 2003, carried out by the Agency’s own Inspector General. Despite
being extensively censored, the published version of the Special Review makes clear
the brutality of the methods that were being used when interrogating terrorist suspects
at sites abroad.
67. It was against this backdrop that the CPT’s delegation examined the question of
the alleged existence of secret detention facilities in Lithuania. The delegation had
talks with the Chairman of the Parliament’s Committee on National Security and
Defence about the findings from the Committee’s investigation into this matter, and
met members of the Prosecutor General’s Office entrusted with the pre-trial
investigation which was underway.
The central issue for the delegation was to try to assess the effectiveness of the pre-
trial investigation. However, for the record, the delegation considered that it should
also visit the two tailored facilities that had been identified in the Parliamentary
Committee’s report when referring to partnership co-operation Projects Nos. 1 and 2.”
352. As regards the inspection of the premises of “Project No. 1” and
“Project No. 2”, the report read:
“68. The facilities of Project No. 1 consisted of a small, single-storey, detached
building located in a residential area in the centre of Vilnius. According to the
Parliamentary Committee’s report, ‘facilities suitable for holding detainees were
equipped, taking account of the requests and conditions set out by the
partners ... however, according to the data available to the Committee, the premises
were not used for that purpose’.
The facilities of Project No. 2 were located in a small locality situated some
20 kilometres outside Vilnius. Far larger than those previously mentioned, the
facilities of this project consisted of two buildings (respectively with a brown and a
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
169
red roof) which were connected and divided into four distinct sectors. As regards the
red-roofed building, the layout of the premises resembled a large metal container
enclosed within a surrounding external structure. Two parts of this building (a fitness
room and a technical area) contained apparatus, machinery and spare parts of US
origin as well as instructions and notices written in English. A Lithuanian official
accompanying the delegation said that this equipment and written material had been
left behind by the previous occupants. According to the Parliamentary Committee’s
report, ‘the progress of works [to equip these facilities] were ensured by the partners
themselves ... The persons who gave testimony to the Committee deny any
preconditions for and possibilities of holding and interrogating detainees at the
facilities of Project No. 2, however, the layout of the building, its enclosed nature and
protection of the perimeter as well as fragmented presence of the SSD [State Security
Department] staff in the premises allowed for the performance of actions by officers
of the partners without the control of the SSD and use of the infrastructure at their
discretion’.
The CPT shall refrain from providing a detailed description of the above-mentioned
facilities. Suffice it to say that when visited by the delegation, the premises did not
contain anything that was highly suggestive of a context of detention; at the same
time, both of the facilities could be adapted for detention purposes with relatively little
effort.”
353. As regards the effectiveness of the criminal investigation carried
out in Lithuania the report read, in so far as relevant:
“70. As already indicated, the allegations of secret detention facilities in Lithuania
that surfaced in August 2009 led to the setting up of a Parliamentary investigation in
November 2009, the findings of which in turn resulted in the launching of a pre-trial
investigation by the Prosecutor General’s Office in January 2010.
It can first be asked whether the Prosecutor General’s Office displayed the necessary
promptitude when the reports of secret detention facilities appeared in August 2009.
Admittedly, it was a question of allegations made in the media. However, those
allegations had to be seen in the context of certain undisputable facts that were by that
time in the public domain, namely that the CIA had been holding and questioning, in
secret locations overseas, a number of suspected terrorists and that the persons
concerned had been subjected to ill-treatment (see paragraphs 65 and 66). In addition,
there was a growing body of evidence, emanating from reports drawn up within the
framework of the Council of Europe as well as other bodies, that some of the CIA
facilities concerned might have been located in European countries. Against this
background, it might be argued that the Prosecutor General’s Office should itself have
taken the initiative and launched an investigation when the issue of the possible
existence of secret detention facilities in Lithuania first came to light in the summer of
2009.
71 The question also arises whether the pre-trial investigation that was initiated on
22 January 2010 is sufficiently wide in scope to qualify as comprehensive. The
investigation relates to a possible abuse of official position as set out in Article 228,
paragraph 1, of the Criminal Code. Certainly, the uncovering of evidence indicative of
a possible abuse of official position by certain Lithuanian civil servants was an
important outcome of the Parliamentary investigation; however, it was not the only
outcome.
According to the data collected by the Parliamentary Committee, aircraft which
official investigations had linked to the transportation of CIA detainees repeatedly
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crossed Lithuanian airspace during the period 2002 to 2005 and did land in Lithuania
during that period. Further, although the Committee failed to establish whether CIA
detainees were brought into/out of Lithuanian territory, it concluded that the
conditions for such transportation did exist. The Committee also ‘established’ that the
Lithuanian State Security Department had received a request from the partners to
equip facilities in Lithuania suitable for holding detainees. And, although reaching the
conclusion that the facilities of Project No. 1 were ultimately not used for detention
purposes, the Committee explicitly refrained from ruling out such a possibility as
regards the facilities of Project No. 2 (see paragraph 68).
When the delegation raised the issue of the scope of the pre-trial investigation with
members of the Prosecutor General’s Office, they replied that ‘facts’ were needed to
launch a criminal investigation, not ‘assumptions’; at the same time, they emphasised
that if evidence of other criminal acts did come to light during the investigation, its
scope could be broadened accordingly. For its part, the CPT considers that when the
above-mentioned findings of the Parliamentary Committee are combined with the
other elements identified in paragraph 70, it becomes clear that it would have been
more appropriate for the scope of the pre-trial investigation to have expressly covered,
as from the outset, the possible unlawful detention of persons (and their possible ill-
treatment) on Lithuanian territory.
72. During its meeting with members of the Prosecutor General’s Office, the CPT’s
delegation sought to ascertain whether the pre-trial investigation complied with the
criterion of thoroughness. This was followed up after the visit by a written request
from the CPT’s President for a chronological account of all steps taken as from the
opening of the pre-trial investigation (persons from whom evidence had been taken,
whether orally or in writing; documents obtained and examined; on-site inspections
carried out; material seized; etc.); information was also sought on whether the
assistance of authorities outside Lithuania (in particular of the United States and
NATO) had been requested and, if so, whether that assistance had been forthcoming.
The delegation did not receive the specific information it requested, either during
the above-mentioned meeting or from the Lithuanian authorities’ response of
10 September 2010. The Committee has been told that: persons related to the subject
of the investigation who had meaningful information have been questioned;
documents that were meaningful to the investigation have been received; the premises
designated as Projects Nos. 1 and 2 have been inspected; no obstacles have been
encountered in the conduct of the investigation. It is affirmed that more specific
information cannot be provided as the major part of the data gathered during the
investigation constitutes a state or service secret.
The CPT is not convinced that all the information that could have been provided to
the Committee about the conduct of the investigation has been forthcoming. Certainly,
given the paucity of the information currently available, it remains an open question
whether the pre-trial investigation meets the criterion of thoroughness.
73. The pre-trial investigation has not yet been finalised. According to the
Prosecutor General’s Office, the collected data is still being analysed and decisions
remain to be made as regards the necessity for additional investigative acts. The
prosecutors met hoped that the investigation would be completed by the end of 2010.
Once it has been completed, the CPT trusts that the fullest possible information
will be made public about both the methodology and the findings of the pre-trial
investigation. Any restrictions on access to information on grounds of state or
service secrecy should be kept to the absolute minimum. This will enable a proper
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
171
assessment of the overall effectiveness of the investigation to be made and ensure that
there is sufficient public scrutiny of its results.
The CPT requests that the findings of the pre-trial investigation be forwarded
to the Committee as soon as they become available.
74. Finally, the CPT has been informed that, on 20 September 2010, the UK-based
non-governmental organisation REPRIEVE wrote to the Prosecutor General of
Lithuania on the subject of a named person who is currently being held by the US
authorities in the detention facilities at Guantánamo Bay. The organisation affirms
that it has received information from ‘the most credible sources inside the United
States’ that this person ‘was held in a secret CIA prison in Lithuania’ during the
period 2004 to 2006, and requests that this matter be investigated.
The CPT would like to be informed of the action taken by the Prosecutor
General’s Office in the light of the above-mentioned letter.”
354. The 2011 CPT Report listed the following comments and requests
for information in respect of the alleged existence of the CIA secret
detention facilities:
“Alleged existence of secret detention facilities in Lithuania
comments
- the CPT trusts that the fullest possible information will be made public about both
the methodology and the findings of the pre-trial investigation launched by the
Prosecutor General’s Office regarding the allegations of secret detention facilities in
Lithuania. Any restrictions on access to information on grounds of state or service
secrecy should be kept to the absolute minimum (paragraph 73).
requests for information
- the findings of the pre-trial investigation launched by the Prosecutor General’s
Office regarding the allegations of secret detention facilities in Lithuania, as soon as
they become available (paragraph 73);
- the action taken by the Prosecutor General’s Office in the light of the letter sent to
the Prosecutor General of Lithuania by the UK-based non-governmental organisation
REPRIEVE on 20 September 2010 (paragraph 74).”
B. The Lithuanian Government’s Response to the 2011 CPT Report
355. On 19 May 2011 the Lithuanian Government issued its response to
the 2011 CPT Report and requested its publication. The Government in
essence summed up the prosecutor’s conclusions of 14 January 2011 (see
paragraphs 191-199 above).
The passages relating to the alleged existence of secret detention
facilities in Lithuania read, in so far as relevant, as follows.
356. As regards the CPT’s comment “the CPT trusts that the fullest
possible information will be made public about both the methodology and
the findings of the pre-trial investigation launched by the Prosecutor
General’s Office regarding the allegations of secret detention facilities in
Lithuania. Any restrictions on access to information on grounds of state or
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
service secrecy should be kept to the absolute minimum”, the Government
stated:
“Most data received during a pre-trial investigation are subject to classified
information protection, as such data constitute a state or official secret bearing
relevant classification markings. Whereas pre-trial investigation material contains
information that constitutes a state and official secret, upon terminating a pre-trial
investigation all pre-trial investigation material shall be transferred to the Information
Security and Operational Control Division of the Prosecutor General’s Office of the
Republic of Lithuania for storage.”
357. As regards the CPT’s request for “the findings of the pre-trial
investigation launched by the Prosecutor General’s Office regarding the
allegations of secret detention facilities in Lithuania, as soon as they
become available”, the Government stated:
(1) The arrival and departure of aircraft of the Central Intelligence Agency of the
United States (hereinafter “the U.S. CIA”) to/from the Republic of Lithuania, U.S.
officers’ access to the aircraft and aircraft cargo and passenger inspections.
The arrival and departure of U.S. CIA-related aircraft to/from the Republic of
Lithuania was established during the pre-trial investigation. However, the procedure
set forth in the Law on Intelligence (Official Gazette Valstybes Zinios, 2000,
No. 64-1931) was observed in all cases. The competent officers of the airport and the
State Border Guard Service (hereinafter the ‘SBGS’) were informed in writing (or
orally) in advance about aircraft and cargo checks planned by the State Security
Department (hereinafter “the SSD”). This is confirmed by case documents presented
by the SSD and questioned witnesses, namely airport employees, SBGS and SSD
officers. No data on illegal transportation of any persons by the aforementioned
aircraft was received during the pre-trial investigation. On the contrary, the persons
questioned during the investigation either categorically denied such circumstances or
said they had no information about it. Therefore, in terms of criminal law, the
allegation that persons detained by the CIA were transported by U.S. CIA-related
aircraft or brought to/from the Republic of Lithuania is just an assumption not
supported by factual data, which is equivalent to an assumption about transportation
of any other persons or items in the civil circulation or prohibited items. In the
absence of factual data to substantiate this assumption, prosecution cannot be initiated
or criminal proceedings cannot be continued at this point. Therefore, it should be
stated that by seeking unhindered access to landed aircraft in airport areas and
carrying out related actions, SSD officers acted lawfully, did not abuse their official
position and did not exceed their powers, and therefore did not commit the criminal
act provided for in Article 228 of the CC. Whereas there are no data on illegal
transportation of persons by U.S. CIA-related aircraft, it should be stated that there is
no reason to address the issue of criminal liability under Article 291 of the CC (Illegal
crossing of the state border) and Article 292 (Unlawful transportation of persons
across the state border).
(2) Implementation of Projects No. 1 and No. 2.
It was established during the pre-trial investigation that the SSD and the U.S. CIA
implemented Project No. 1 in 2002 and Project No. 2 in 2004. The implementation of
both projects is related to building reconstruction and equipment. Discussing the
arguments for the termination of the pre-trial investigation in the section regarding the
implementation of Project No. 1, it is necessary to draw attention to the term of
validity of criminal laws and the statute of limitations as regards criminal liability. ....
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
173
However, despite this procedural obstacle to the pre-trial investigation, it should be
stated that no unambiguous data showing that during the implementation of Project
No. 1 the premises had been prepared for keeping the person detained were received
during the pre-trial investigation. The received factual data on the specific features of
equipment of the premises (which allow to make an assumption about the possibility
of keeping the detainee therein) assessed in connection with the data justifying
another purpose of the premises, taking into account the fact that there are no data on
any actual transportation to and keeping of detained persons on these premises, do not
provide a sufficient reason for formulating a notification of a suspicion of abuse to a
person and thus initiating prosecution of the person.
Regarding Project No. 2, no data on a connection between it and the keeping of
detainees were received during the pre-trial investigation. On the contrary, the factual
data received during the pre-trial investigation and all related witnesses who have
been questioned justify another purpose and use of the building. The real purpose of
the premises cannot be disclosed as it constitutes a state secret.
It must be stated that the criminal act provided for in Article 228 of the CC was not
committed during the implementation of Projects No. l and No. 2 by the SSD and the
U.S. CIA.
It should be noted that there is no reason to address the issue of criminal liability
under Article 100 of the CC (Treatment of persons prohibited under international law)
and Article 146 of the CC (Unlawful deprivation of liberty) because, as already
mentioned before, no data on illegal transportation of persons, their detention or
another illegal restriction or deprivation of liberty were received during the pre-trial
investigation. Discussing the assumption about the possibility of keeping the person
detained on the premises of Project No. 1, as regards the impossibility of classifying
the act under Article 100 of the CC, it must be pointed out that in the absence of
persons detained, arrested or otherwise deprived of liberty on the aforementioned
premises, a legally significant feature necessary for the classification of the act under
Article 100 of the CC – ‘denial’ of deprivation of liberty - cannot be stated either.
(3) Provision of information on the objectives and content of ongoing Projects
No. 1 and No. 2 by SSD management to top state leaders.
The legal framework of international cooperation of the SSD is set forth in the Law
on Intelligence. Legal acts do not directly require to ‘approve’ the directions (tasks) of
international cooperation of the SSD at any political level. They have been determined
by the general need for international cooperation and direct SSD contacts with the
special services of other countries. During the implementation of Projects No. 1 and
No. 2 on SSD cooperation with the U.S. CIA, the then SSD leadership failed to
inform any top official of the country about the objectives and content of these
projects. Upon stating that laws do not establish an obligation to provide such
information, and taking into account the fact that, in view of its scope, the provision of
such information can and must be performed according to the ‘need-to-know’
principle, it must be stated that there are no signs of a criminal act - abuse - at this
point either.
Pursuant to Article 166 of the CCP, a pre-trial investigation shall be started (1) upon
receiving a complaint, statement or report on an offence; (2) if the prosecutor or the
pre-trial investigation officer discovers signs of a criminal act. In the case in question,
the decision to start a pre-trial investigation into abuse under Article 228( 1) of the CC
was taken by the chief prosecutor of the Organised Crime and Corruption
Investigation Department of the Prosecutor General’s Office who drew up an official
report. There was the only ground for the pre-trial investigation, namely the
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
circumstances indicated in the findings of a parliamentary investigation carried out by
the National Security and Defence Committee of the Parliament of the Republic of
Lithuania into possible transportation and keeping of persons detained by the U.S.
CIA in the territory of the Republic of Lithuania.
Summarising the data collected during the pre-trial investigation, it must be stated
that although all necessary and sufficient measures were used to collect factual data
on suspected criminal acts, no objective data confirming the fact of abuse (or another
criminal act) were collected during the pre-trial investigation, and the total factual
data collected do not suffice for stating that the criminal acts had been committed.
Therefore, it is not possible to state the commission of the criminal acts at the
moment. On the contrary, such assumption-based information, which served as a
ground for launching the pre-trial investigation under Article 228(1) of the CC, did
not prove to be true and was denied. Pursuant to Article 3(1)(1) of the CCP, the
criminal process shall not be initiated or, if initiated, shall be discontinued if no act
having the signs of a crime or a criminal offence has been committed. Therefore, the
pre-trial investigation was terminated as no act having the signs of a crime or a
criminal offence had been committed.
It has already been stated that the factual data on cooperation between the SSD and
the U.S. CIA in intelligence activities contained in the pre-trial investigation material
showed that no criminal act had been committed when providing information on these
activities to top state leaders during the implementation of Projects No. 1 and No. 2.
But these data are fully sufficient to state that there were potential signs of a
disciplinary offence in the actions of SSD leaders M.L., A.P. and D.D. who
coordinated cooperation between the SSD and the U.S. CIA and participated in it,
SSD leaders who were responsible for building reconstruction (Projects No. 1 and
No. 2), initiated and performed this reconstruction, and other officers. However, the
aforementioned SSD leaders do not work for the SSD any more, and disciplinary
proceedings cannot be initiated against them. In addition under Article 34(2) of the
SSD Statute, no disciplinary punishment can he imposed one year from the date of
commission of the offence. Therefore, even if there were data on a possible
disciplinary offence, the decision provided for in Article 214(6) of the CCP to hand
over material when terminating a pre-trial investigation for addressing the issue of
disciplinary liability cannot be taken.”
358. As regards the CPT’s request for information on “the action taken
by the Prosecutor General’s Office in the light of the letter sent to the
Prosecutor General of Lithuania by the UK-based non-governmental
organisation REPRIEVE on 20 September 2010”, the Government stated:
“The aforementioned statement alleged that U.S. CIA officers transported H to the
Republic of Lithuania, kept him in the territory of the Republic of Lithuania and
transported him from the Republic of Lithuania in the period from the spring of 2004
to September 2006. It was stated in the decision to terminate the pre-trial investigation
that REPRIEVE had not provided any facts proving this, had not indicated and
disclosed the source of information, and, as already mentioned before, no data on
illegal transportation of any persons, including H, by the U.S. CIA to/from the
Republic of Lithuania were received during the pre-trial investigation.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
175
C. Mr Fava’s testimony regarding the “informal transatlantic
meeting” given in Al Nashiri v. Poland and Husayn (Abu
Zubaydah) v. Poland
359. In Al Nashiri and Husayn (Abu Zubaydah) Mr Fava was heard in as
expert in his capacity as the Rapporteur of the TDIP at the fact finding
hearing (see Al Nashiri v. Poland, cited above, §§ 42 and 305-318); and
Husayn (Abu Zubaydah) v. Poland, cited above, §§ 42 and 299-304). He
responded, inter alia, to the Court’s questions concerning records of the
informal transatlantic meeting of European Union and North Atlantic Treaty
Organisation foreign ministers, including Condoleezza Rice, of 7 December
2005, “confirming that Member State had knowledge of the programme of
extraordinary rendition”, as referred to in paragraph “L” of the 2007 EP
Resolution (see Husayn (Abu Zubaydah), cited above, § 300; and Al Nashiri
v. Poland, cited above, § 306; see also paragraphs 285-286 above). He
testified as follows.
As regards the checking of the credibility of the confidential source from
which the records – to which he referred to as “the debriefing” – had been
received:
“Yes, the reliability was checked, it was a confidential source coming from the
offices of the European Union, in particular from the Commission. In Washington,
when we received the debriefing of the [Washington] meeting, we checked that the
latter did indeed correspond to the real content of the meeting and that same opinion
was shared by the Chair of the Temporary Committee and in fact this document was
acquired as one of the fundamental papers of the final report which I proposed and
that the Temporary Committee has approved and that the Parliament subsequently
approved.”
As regards the nature of the document:
“[A] debriefing. Some meetings, when there is a request – in that case the request
had been put forward by the American Department of State – are not minuted;
however, in any case a document which incorporates with sufficient details the course
of the discussion is drawn up, even if this is not then formally published in the records
of the meeting. In this case it was asked not to minute [the meeting], but it was asked
to write this document, following the practice, and it is this document, the debriefing,
that has been then provided to us.”
As regards the topic of the transatlantic meeting:
“Extraordinary renditions. The American Secretary of State, Condoleezza Rice, met
the ministers and the topic of discussion was what had been discussed in those months
by the general public in America and Europe – I believe our Temporary Committee
had already been set up – it was a particularly burning issue and there was the concern
on the part of several Governments about the consequences that these extrajudicial
activities in the fight against terrorism, using extraordinary renditions as a practice,
could create problems to the various Governments in respect of the public opinion and
in respect of the parliamentary inquiries, some of which had already been undertaken
at the time. Therefore, some Governments were asking whether what was known
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
corresponded to the truth and whether all this was not contrary to the international
conventions, beginning from the Geneva Convention onwards.
In that case, the reply – from the debriefing we received – from Madame Rice, was
that that operational choice to counteract terrorism was necessary because the atypical
nature of the conflict, with a subject that was not a state but a group of terrorists
prevented the use in full of the international conventions which up till then had served
mainly to regulate traditional conflicts. This is the thesis which also the legal
counsellor of Condoleezza Rice put to us in Washington when we had a hearing and it
was explained to us that they felt that they could not apply the Geneva Convention
and that they thought that the extraordinary renditions were therefore a necessary and
useful practice even for European Governments, because they placed European
countries, European Governments [and] the European Community in a position to
defend themselves from the threat of terrorism.
I also remember – of course we are talking about events of seven years ago – that
from the said debriefing there emerged quite an animated discussion among the
European Governments[:] between those who felt that these practices should be
censored for obvious reasons linked to international law, and other Governments
which felt on the contrary that they should be supported. ...”
As regards the content of the document:
“[T]his document indicated precisely the interventions with the names of the
ministers of member states of the European Union. That document was a fairly clear
picture of how the discussion had proceeded, it was not just a summary of the various
topics dealt with but the document actually recalled who said what. In fact, let’s say,
the discussion heated up also because of the different positions taken, [which
positions] are reproduced quite faithfully in this document. Which member States had
felt the need to raise doubts and objections to the practice of extraordinary renditions
and which member States had felt on the contrary the need to support the thesis of
Madame Rice. ...
The discussion started because a few weeks before the fact had been divulged by the
American press, I think it was an article of the Washington Post which was then taken
up by ABC, ABC television, saying that there were secret places of detention in
Europe. Extraordinary renditions were a fairly widespread practice in 2002 and 2003
and that in Europe there were at least two places of secret detention. Afterwards
President Bush, in a statement, confirmed that there had been some detainees,
members of Al Qaeda, who had been transferred to Guantánamo after having gone
through some places of detention under the CIA’s control, thereby somehow
justifying and confirming what had been said by the American journalists at the time.
The meeting with Condoleezza Rice and the European ministers, as far as
I remember, took place immediately after these revelations of the American press and
indeed this was one of the reasons why our Temporary Committee was set up.”
D. Documents concerning the on-site inspection of Project No. 1 and
Project No. 2 carried out by the investigating prosecutor
360. The Government produced copies of records made in the course of
the on-site inspections of Project No. 1 and Project No. 2 which were
carried out by the investigating prosecutor on, respectively, 17 March and
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
177
4 June 2010 (see also paragraphs 186 and 190 above). The documents were
submitted in the Lithuanian language and with an English translation
6
.
1. Record of on-site inspection of Project No. 1 of 17 March 2010.
361. The English translation of the document reads, in so far as relevant,
as follows:
“Translation into English
TOP SECRET
DECLASSIFIED
[Written by hand]
RECORD ON INSPECTION OF PREMISES
17 March 2010
Vilnius
The inspection commenced at [Written by hand] 2.15 p.m., completed at [Written by
hand] 3.00 p.m.
The Prosecutor of the Investigation Department of Organised Crime and Corruption
of the Prosecutor General’s Office of the Republic of Lithuania [full name], pursuant
to Articles 166, 167, 205, 207 of the Code of Criminal Procedure, arrived at [Written
by hand] the territory located at Z. Sierakausko str. 25, Vilnius and pursuant to
Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection
of objects relevant to the investigation of criminal acts and recorded the course and
results of this investigative action.
...
The Prosecutor General’s Office’s Control Section prosecutor [full name] has been
participating in the course of the investigative action during the recording of the acts
and results thereof ...
Objects inspected: [written by hand] territory located at Z. Sierakausko str. 25,
Vilnius and auxiliary building therein.
During inspection it was established: [written by hand] the territory, address
Z. Sierakausko str. 25, Vilnius is located next to Z. Sierakausko street. It is a brick
wall fenced from the street side and a wired fence on the other side, a fenced territory
of irregular shape. Along Z. Sierakausko Street the territory is fenced with a brick
coloured wall, there are multi-storey dwelling houses surrounding the territory. There
is a metal gate at the entrance to the territory. There is also a metal wicket. At the
entrance, there is a parking lot. On the left side of the parking a bigger brick building
is located. It might be called the main building. On the right (right corner of the
territory), a smaller building, which might be called the auxiliary building is located.
The auxiliary one is a brick walled, yellow coloured, single-floor building. The
distance between the building wall and a fence along Z. Sierakausko str. is 5.7 m. The
distance between another (back) side of the building and a fence perpendicular to
Z. Sierakausko str. is 3.55 m. The auxiliary building is oblong, flat roofed. The length
6. The translation has been edited by the Registry and certain editorial corrections made.
The review does not affect the content of the documents produced.
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of the building is 17.50 m, width 6.30 m. The middle part of the building seems to be
sticking out if observed from the front side of it. There are two lifting white coloured
gates in this part of the building - entrances to garages. Windows of the building are
white, plastic. The windows of the room marked as No. 2 in the scheme are equipped
with metal lifting security levers. On both sides of the building there are entrance
doors, i.e. plastic white doors. Windows and doors as well as rooms indicated in the
scheme annexed to the record. On the facade of the building as well as in the territory,
there are CCTVs. The inspection of the premises is commenced by entering the doors,
which are located in the furthermost part of the building if the building is observed
from the street. Inside walls of the building brown rooms, are bricked, plastered,
coloured in yellow. All inside doors are made of plywood, light coloured, equipped
with an ordinary lock. Floors are tiled in the rooms, corridors, sanitary rooms, kitchen,
garages. Premises marked as No. 1 and No. 2 are in linoleum flooring. Ceilings in the
rooms, corridors, kitchen, sanitary rooms, are covered in plastic panelling. Ceilings of
premises No. 1 and No. 2 are plastered, coloured in white. Upon entering the
aforementioned doors the entrance-hall No. 2, size 1.45 x 1.07 is located. On the right
side the entrance door to the room No. 2 is located. The size of this room is
4.10 x 3.06 m. height 3.61 m. The walls of these premises are plastered, coloured in
yellow. Paint is peeling in some lower parts of the wall, possibly due to humidity.
There are no other special features of the walls visually notable.
There is a table in the room as well as used computer parts on the table and floors.
There are two windows in the room, width 1.40 m, height 52 cm. Further from the
entrance-hall there is a narrow corridor, width 80 cm. On the left side of the corridor
sanitary room No. 2 is located. It consists of a lavatory and a sink. At the end of the
corridor, there are doors to the garage No. 2. The garage is located over the entire area
of the building, and along the room there is a pit, which is covered with planks at the
time of inspection. In the garage, there are different boxes, old items, bicycles, etc.
There is an electric heating boiler on the wall in the garage. The heating system of the
building consists of radiators, which are located in the entire building. The size of the
garage No. 2 is 7.05 x 3.65 m. There are doors from the garage to the kitchen. This
room is 3.20 x 3.00 in size. There is one window in the room, it is l.33 width. Along
the window, there is a table with chairs. The kitchen furniture along the wall
consisting of catchall, electric stove, rack as well as a sink, equips the kitchen. By the
wall, opposite to the wall with the window, a ‘Sharp’ refrigerator is located. There is a
shower cubicle in the corner. Further, the entrance to the garage No. 1 and to room
No. 1 from the kitchen is located.
The size of the garage No. 1 is 3.85 x 3.22 m. There is a little tractor, tyres, piano,
and a rack with different items located in the garage. The size of the room No. 1 is
4.12 x 3.75 m. There are two windows in the room width 1.40 m. An oval table with
6 chairs located in the room. Another table is located in the corner of the room, close
to the entrance-hall. There is a plastic grey relay box 2 x 20 size, 10 cm depth on the
wall, which is the closest to Z. Sierakausko street. There are cable inputs equipped in
it; the cables directed to the room are not connected. The box is installed 100 cm
distance from the sidewall border of the entrance-hall. From this room one enters the
entrance-hall No. 1, of 2.86 x 1.18 m in size. From the entrance-hall one also enters
the sanitary room No. 1, which is equipped with a lavatory and sink. Both sanitary
rooms, as well as the kitchen walls, are partly covered in tiles. In the entrance-hall, the
exit from the building is accessible.”
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
179
2. Record of the on-site inspection of Project No. 2 of 4 June 2010
362. The English translation of the document reads, in so far as relevant,
as follows:
“English translation
RECORD ON INSPECTION OF BUILDING AND TERRITORY LOCATED AT
ANTAVILIŲ STR. 27A VILNIUS
4 June 2010
Vilnius
The inspection commenced at 9.20 a.m., completed at 10.35 a.m.
Vilnius Regional Prosecutor’s Office prosecutor of the Investigation Department of
Organised Crime and Corruption [full name], arrived at the building and territory
located at Antaviliai str. [27] A, Vilnius following Articles 92, 179 and 207 of the
Code of Criminal Procedure performed the inspection of the above-mentioned objects.
...
Persons who participated during the inspection and who were present during the
inspection activities: the Prosecutor’s General Office prosecutor of the Investigation
Department of Organised Crime and Corruption [full name], the head of the board of
the State Security Department [full name], the head of the Training Centre of the State
Security Department [full name].
Weather conditions, lighting during inspection: daytime, fair weather with no sun,
no rainfall.
Established during inspection: The territory is fenced with a metal wire fence with
no additional safety or lighting devices. Entrance to the territory through a metal
wicket, equipped with an ordinary lock, locked by an ordinary key. Vehicles enter
through the metal gate. There is a building within the territory consisting of two
sections. Section 1 seems to be residential. It is a two-storey building with a mansard,
second floor with balconies. Outside decoration made from crushed bricks and painted
panelling. Section 2 is of hangar type, outside decoration is made from tin-plate.
Premises equipped in both sections have numbers, premises include classrooms,
working rooms, single and double residential rooms, kitchen and laundry rooms,
leisure room (tables of a billiard, table tennis), library, storage rooms, WCs, garages,
watchman room, closet, fitness room, shooting hall. Mansard is non-equipped; it is
without thermal insulation as well. The perimeter of the building is monitored by
CCTVs; none of the windows equipped with inside or outside window bars. There are
no rooms designated for temporary detention or equipped with bars or in any other
way adjusted for the forced deprivation of one’s liberty.
[Written by hand] Note: the shooting hall is adapted merely for laser guns, not
firearms. ...”
E. Resolution and Operational Action Plan of 25 July 2002
363. The Government produced copies of partly declassified documents,
both dated 25 July 2002 and entitled, respectively, “Resolution to initiate
the file of operation” (“2002 SSD Resolution”) and “Operational Action
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Plan” (“2002 SSD Action Plan”). Most parts of the documents are
blackened.
364. An English translation of the 2002 SSD Resolution reads:
“EXTRACT
[the name of the addressee blackened]
RESOLUTION no. 01-21-531 vs/02
To initiate [blackened] a file
25 July 2002
Vilnius city
[three lines of the text blackened]
in case [blackened] necessity to find and arrange premises [blackened] for the
purpose of extradition (transfer) of working secret intelligence collaborators, also to
ensure their protection and living conditions [the remaining part of text, some half
page blackened].”
365. An English translation of the 2002 SSD Action Plan reads:
“EXTRACT
[blackened] file [blackened]
[blackened] ACTION PLAN
25/07 2002 Vilnius
[three lines of the text blackened]
1) to select premises and to equip them with necessary measures for the
organisation of extradition of secret intelligence collaborators [blackened]
2) to organise the protection of secret intelligence collaborators, to provide them
with essential living conditions.
[the remaining text comprising some one page blackened]”
F. Report on the incident of 6 October 2005 in Vilnius airport
366. The Government produced a copy of the report (“SBGS Report”)
made by J.K., an officer and senior specialist of the SBGS, which related an
incident that took place on 6 October 2005 when R.R., an officer of the
SBGS had been refused access to the plane N787WH, which had made an
unexpected landing in Vilnius airport. An English translation of the report
provided by the Government reads, in so far as relevant, as follows:
7
“Translation into English
Captain R[...]. C.[...]
Acting Chief
7. The translation has been edited by the Registry and certain editorial corrections made.
The review does not affect the content to the document.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
181
of the Vilnius airport Border Checkpoint
OFFICIAL REPORT REGARDING ACCIDENT AT AIRPORT BORDER
CHECKPOINT 6/10/2005 VILNIUS
On 5 October at 5.15 a.m. the unplanned plane from Antalya landed in Vilnius
Airport BChP [Border Checkpoint]. The state border officer R.R[...] exercising the
guard ‘Escort and inspection of aircraft’ attempted to approach the mentioned aircraft
and to perform actions according to his service instructions (write down board
number, find out where the plane arrived from, what was the time of departure, were
there any passengers), however when he was about 400 metres away from the aircraft
he was stopped by the Aviation Security staff and was denied access to the aircraft.
Outside there was low visibility (fog), but it was possible to discern that the Aviation
Security staff were patrolling around the aircraft, and also that there were two patrol
vehicles of the Aviation Security parked. The officer saw how the vehicle departed
from the mentioned aircraft and left the territory of the airport BChP through the
gates. I contacted the chief of the Shift of the Aviation Security, who explained to me
that the SBGS commanders had been informed about the landing of this aircraft and
the aviation security actions undertaken. When the mentioned aircraft had fuelled up,
it departed from the Vilnius Airport BCHP at 6.05 a.m.
Vilnius frontier district OD [Officer of the day] was informed about the above-
mentioned incident.”
G. Letter from former President of Lithuania Mr Adamkus to the
CNSD of 26 November 2009
367. The Government produced a copy of the letter of 26 November
2009 written by Mr Valdas Adamkus, the President of the Republic of
Lithuania and addressed to the CNSD in connection with the Seimas
inquiry. An English translation of that letter produced by the Government
reads , in so far as relevant, as follows:
8
“Having been closely following the work of the parliamentary inquiry instituted by
the Seimas National Security and Defence Committee (hereinafter - Committee)
concerning the alleged transportation and confinement in the territory of the Republic
of Lithuania of persons detained by the United States Central Intelligence Agency, I
have decided immediately to inform the Committee about the events in Lithuania at
the relevant time. I am confident that this would contribute to the objectivity of the
investigation.
I would like to remind [you] that on 29 March 2004 Lithuania became a member of
NATO. When seeking membership in this organisation and especially when
approaching the acceptance of our country into the alliance, very intense and active
negotiations
with many consultations and meetings took place. Therefore
communication with the future and subsequently fellow partners, i.e. the NATO
organisation and its member States, was very close and active.
Particularly I would like to distinguish the cooperation with the strategic partner of
Lithuania - the United States of America - whose support for Lithuania’s acceptance
8. The translation has been edited by the Registry and certain editorial corrections made.
The review does not affect the content of the document.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
into NATO would be hard to overestimate. This communication was performed on
many different levels, from delegations of heads of State to delegations of politicians,
civil servants, specialists of national defence and many other spheres. Also the
implementation of joint projects and operations in the sphere of defence and security
in cooperation with partners was and still is very important.
As the then head of State I was informed about the most important defence and
security projects implemented in co-operation with some NATO partners as
demonstrating examples of mutual trust and effective cooperation. The Committee
should be familiar with this information.
However, I have never been informed about the issue concerning CIA prisons which
is currently under investigation and I learnt about it only from the media. When I was
asked about this issue live on air on the Lithuanian Radio and during the Lithuanian
Television programme ‘Paskutinis klausimas’ (Last question) I replied to the host that
I had never heard of and had never been informed about the above-mentioned
operations in the territory of the Republic of Lithuania. My replies were heard by
Lithuanian people and the Chairman of the Seimas National Security and Defence
Committee Arvydas Anušauskas who participated in the programme. Once again I
state that I was not aware and I was not informed about the alleged existence of a
prison, detentions and activity related to this.
I am hoping that the National Security and Defence Committee of the Seimas of the
Republic of Lithuania having examined disseminated information degrading the
Lithuanian State shall publish the facts revealing the truth.”
H. Letter from the Ministry of the Interior of 9 December 2009
368. The Government produced a letter from the Ministry of the Interior
to the Chairman of the Seimas CNSD of 9 December 2009. The letter
related, among other things, the incident of 6 October 2005. The Ministry
also informed the Seimas that no internal investigation had been conducted
in that respect in view of the fact that no breach of disciplinary rules had
been established and that the SBGS had received a letter from the SSD
informing them of the landing of N787WH and the measures that the SSD
had intended to take in respect of the landing. The SSD’s letter of 5 October
2005 was received by the SBGS on 7 October 2005.
I. Letter from Palanga airport of 15 March 2010
369. The Government submitted a copy of the Palanga airport’s letter to
the Vilnius City District Prosecutor’s office of 15 March 2010 (“Palanga
airport letter”). According to the letter, Palanga airport had not received any
letter from the SSD concerning the “possible access of its staff to the airport
and performance of any procedures in relation to the aircraft” in respect of
the N787WH landing on 18 February 2005. The enclosed invoice stated that
N787WH arrived from Bucharest en route to Copenhagen. It arrived at
8.09 p.m. and departed at 9.30 p.m.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
183
J. The Customs Department letter of 12 April 2010
370. The Government submitted a copy of a letter from the Customs
Department under the Ministry of Finance to the to the Vilnius City District
Prosecutor’s office, dated 12 April 2004, informing the prosecutor that
N787WH, which had landed at Palanga airport on 18 February 2005 at
8.09 p.m. had not been recorded in the Aircraft Arrivals registration journal
at the Palanga airport post of the Klaipeda Territorial Customs. Nor had any
inspection been carried out in respect of N787WH when it had landed at
Vilnius airport from Anatalya, Turkey on 6 October at 5.15 a.m.
K. The SBGS letter of 27 April 2010
371. The Government produced a letter from the SBGS to the to the
Vilnius City District Prosecutor’s office of 27 April 2010. An English
9
translation of the letter reads, in so far as relevant:
“... Hereby we submit the requested documents and we would like to inform you
that in the information system of the [SBGS ] the following data have been recorded:
...
5 US citizens arrived in the Republic of Lithuania when on 18 February 2005 the
aircraft tail no. N787WH landed at Palanga airport:
1. [L.E.W.], doc. no. ...
2. [F.X.B.], doc. no. ..
3. [E.M.V.], doc. no. ...
4. [R.A.L.Z.], doc. no. ...
5. [J.S.], doc. no. ...
We do not possess any other date with regard to persons who crossed the border
following the arrival of the indicated aircraft. ... [I]t could be noted that when on
6 October 2005 at 5.15 a.m. the unplanned airplane from Antalya landed in Vilnius
airport ... [Border Checkpoint] the State Border officer ... when about 400 metres
away from the airplane was stopped by the Aviation Security staff ... and restricted
access to the aircraft ... [T]here were two vehicles of the Aviation Security parked.
The officer saw how the vehicle departed from the mentioned aircraft and left the
territory of the Airport [Border Checkpoint] through the gates controlled by the
Aviation Security staff. ... Afterwards the SBGS received a classified letter from the
[SSD]. ...”
9. The translation has been edited by the Registry and certain editorial corrections made.
The review does not affect the content of the document.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE
COURT
372. On 28 June 2016 the Court took evidence from Senator Marty,
Mr J.G.S. and Mr Black (see also paragraphs 17-18 above). The extracts
from their statements as reproduced below have been taken from the
verbatim records of the fact-finding hearing. They are presented in the order
in which evidence was taken.
A. Presentation by Senator Marty and Mr J.G.S. “Distillation of
available evidence, including flight data, in respect of Lithuania
and the case of Abu Zubaydah”
373. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar
presentation before the Court in Al Nashiri v. Poland (cited above,
§§ 311-318).
374. Their oral presentation in the present case was recorded in its
entirety and included in the verbatim record of the fact-finding hearing. The
passages cited below have been taken from the verbatim record.
375. The aim of the presentation was explained by Mr J.G.S. as follows:
“Madam President, Honourable Judges, representatives of the parties, I have had the
privilege of addressing this Court on three prior occasions in respect of cases
involving aspects of the CIA’s rendition, detention and interrogation programme as it
has manifested itself on the territories of the Council of Europe. I am asked today to
provide a distillation of available documentary evidence including flight data in
respect of Lithuania and the applicant into these proceedings, Mr Abu Zubaydah. I
would kindly request, however, that the Court and indeed the parties take note of my
prior testimonies given in order that I do not repeat myself unduly in the course of this
presentation. I would like to simply state that the abuses being discussed are part of a
widespread and systematic practice intended at holding in secret and indefinitely
persons suspected of terrorism, but never charged with any criminal offence – in some
cases, and indeed in Mr Zubaydah’s case – for periods up to and over four years in
length, during which a multiplicity of abusive techniques, euphemistically described
as enhanced interrogation techniques, are practised on these individuals in violation of
their personal integrity in the context of the conditions of confinement in which they
are held.”
This was followed by the presentation of a map showing a network of
interconnected various locations, which was referred to as a “global spider’s
web” in the 2006 and 2007 Marty Reports (see paragraphs 270-277 above;
and see Husayn (Abu Zubaydah), cited above, § 306).
376. As regards the fact that Lithuania was not included among the
countries suspected of hosting CIA black sites in the Marty Inquiry, Senator
Marty stated as follows:
“Madam President, Judges, Ladies and Gentlemen, a few words by way of
introduction. First, why is there no mention made of Lithuania in the 2006 and 2007
reports? There are two reasons why. First, at the time, we had very few resources
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
185
available, we focused on Poland and Romania. The other reason is that we spent a lot
of energy establishing the spider web of aircraft movements. During that short time
we spent a lot of energy collecting flight data, which was really a lot of work. And we
invested a lot for the future because, even years later, such data helped us to develop
cases. I speak for the first time as rapporteur for Lithuania.
In another report, that is, the [2011] Report on abuse of State secrecy I did not really
go into secret prisons at that time. What I talked about was the use of State secrecy
which had been invoked. It was invoked then even in respect of the inquiries of the
Committee against Torture – the CPT notwithstanding the fact that the CPT was
bound by the strictest confidentiality and there have never been any leaks by the CPT.
Whatever the CPT has published has always been in agreement with the country
concerned. So, in that part of the report when I mentioned Lithuania I naturally
benefited from information that had become public thanks to the remarkable work
carried out by several NGOs and I remember well at the time the prosecutor from
Lithuania was also very active. What I found troubling in the report is that there too
State secrecy was invoked.”
Mr J.G.S. added:
“One observation with regard to Lithuania bears mentioning at the outset. When we
took up the mandate of the Council of Europe in late 2005 and early 2006, to
investigate alleged secret detentions on Council of Europe Member States territories,
we regarded this as an issue that had cast a dark shadow over the continent’s recent
past. We had understood at the time of our investigation that it was a category of
abuse which had albeit recently concluded. Several years later and today I am in a
position to state this categorically: we are faced with the troubling yet inescapable
realisation that at the time we were investigating, the abuses were not only part of
Europe’s recent past but also of its present for contemporaneously to investigations
led by Senator Dick Marty a secret detention site operated by the CIA and its national
counterparts existed on the territory of the Republic of Lithuania.
I wish to begin by setting out in the form of a graphic illustration the system in
which such detention sites were situated. This is a system that spanned the entire
globe but it had at its heart several hubs of operation here on the European continent. I
am using a map of the world to show those present several categories of places at
which aircraft landed in the course of the so-called war on terror.”
377. The concept of the so-called “global spider’s web” of rendition
circuits executed by the CIA planes was explained as follows:
“In order to construct a picture of the scale and volume of operations we began to
map out specific circuits flown by rendition aircraft in the material period. I shall
demonstrate two of these in order to illustrate the concept. In January 2004, first of all,
our rendition circuits spanning twelve days saw the transfer between multiple
different sites of up to eight individuals. The aircraft flew from Washington with a
stopover in Shannon before arriving at its first staging point in Larnaca Cyprus. From
Larnaca it embarked on its first pickup of a detainee in Rabat - Morocco,
Binyam Mohamed, the British resident, who was flown to further secret detention in
Kabul - Afghanistan. Between Kabul and Algiers there was a further detainee transfer
before the crew and aircraft repaired to a second staging point in Palma de Majorca.
From here the aircraft embarked on a rendition operation already accounted for by this
court that of the German national Khaled El-Masri from Skopje via Baghdad to secret
detention in Kabul. The aircraft then carried a high-value detainee Hassan Gul from
186
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Kabul - Afghanistan, to Bucharest - Romania. The aircraft once more returned to a
staging point in Palma before flying back to the United States.
This type of operation, whilst first uncovered in the Marty Report and seen as an
anomaly, has in fact turned out to be quite typical of the way in which the CIA rotated
and recycled its detainees among multiple secret detention sites on multiple
continents. By way of further illustration in September 2003 the aircraft N313P
embarked from Washington and flew to stopover in Prague before collecting
detainees in Tashkent Uzbekistan handed over to the CIA by local counterparts. Those
persons were transferred to Kabul, Afghanistan, whereupon a circuit encompassing
five individual secret detention sites Kabul - Afghanistan, Szymany – Poland,
Bucharest - Romania, Rabat - Morocco, culminating at the CIA’s detention facility at
Guantánamo Bay.
As early as September 2003 therefore it was not uncommon for these aircraft to be
traversing long distances in short spaces of time and transferring under severe duress
multiple detainees between multiple different detention sites. It is when we collated
all of these operations that were known to us at the time and layered them onto this
graphic, that we came upon this motif of a global spider’s web.”
378. As regards the role played by the Detention Site Violet country’s
authorities, Mr J.G.S. stated:
“Finally, Your Honours, I wish to point to you specific references to the actions of
the Lithuanian counterpart in the administering of the site. The text of the Senate
Committee Inquiry appears to refer to an individual, a person, as a representative of
the counterpart authority and in this passage here the word that is used, and which I
find significant, is “support”. Just as in earlier proceedings we pointed to a passage
which referred to the support and cooperation of the Romanian authorities. Here we
have an indication that money was offered as a means of quotes “showing
appreciation for the support of the local counterpart”. We know this is Lithuania
because it talks about the expanded facility and it talks about Detention Site Violet
earlier in the same passage. It does talk also about complex mechanisms needing to be
innovated for the disbursement of this money, which also indicates that
notwithstanding the nominal support there were often inclinations to keep secret the
nature of the cooperation.
This is the last reference from the Senate Committee Report and I will conclude our
presentation today, but I sense that it might also be important for the Court’s
deliberations. We have heard from both the Seimas Parliamentary inquiry in
Lithuania, and subsequently in public releases from the Lithuanian Prosecutor
General’s office, that whilst they can confirm the existence of these two highly
customised facilities fit to detain individuals, they are unable to endorse the
conclusion that these were detention sites, because they have an alternative
explanation as to what they were used for. This was a conclusion in the Seimas report
and it has recently been cited by the Prosecutor General’s office as a reason for
stalling investigation. The CIA reporting appears to present a different viewpoint. The
CIA states that the Lithuanian counterpart ‘probably has an incomplete notion
regarding the facility’s actual function’, meaning that the Lithuanians may have
known of the site’s existence, they may have known of a stated purpose or a stated
modus of cooperation, but there were some aspects, as in all host countries, which
were regulated strictly upon the “need to know principle”, and the CIA did not
divulge the individual incoming or outgoing detainee transfers to its Lithuanian
counterparts in a manner that would allow them to be apprised of that specific aspect.
Hence, when the statement at the end says he probably believes that it is some sort of
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
187
other centre, there is a plausibility to the Lithuanian position stated in the
Parliamentary Inquiry, persons who were not themselves party to the operations, and I
think in assessing the cooperation between these two partners we can come to a
conclusion very similar to that we reached in our inquiry vis-à-vis Poland and
Romania that authorisations and approvals were necessarily provided at the highest
levels of government, but primacy in the execution of operations lay unambiguously
with the CIA, the American operatives. Sometimes at the expense of good relations
with their hosts.”
B. Senator Marty
379. Senator Marty was a member of the PACE from 1998 until the
beginning of 2012. He chaired the Legal Affairs and Human Rights
Committee and, subsequently, the Monitoring Committee.
At the end of 2005 he was appointed as Rapporteur in the investigation
into the allegations of secret detentions and illegal transfers of detainees
involving Council of Europe member States launched by the PACE
(see also paragraphs 266-277 above).
On 2 December 2013 Senator Marty testified before the Court at the
fact-finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see
Al Nashiri v. Poland, cited above, §§ 319-323; and Husayn (Abu Zubaydah)
v. Poland, cited above, §§ 305-317).
380. In the present case, in response to the questions from the Court and
the parties, Senator Marty testified as follows.
381. In response to the judges’ question as to what kind of evidence
formed the basis for the findings and conclusions in paragraph 37 of the
2011 Marty Report (see paragraph 277 above) as to the operation of the CIA
extraordinary rendition programme and existence of a CIA secret detention
facility in Lithuania were made, Senator Marty stated:
“First of all I should like to point out that the 2011 Report hardly concentrated on
the problem of secret detention at all and therefore my function in relation to that of
Mr [J.G.S.] is somewhat different because Mr [J.G.S.] continues to work upon the
problem whereas I was occupied in other fields. ...
The fundamental problem in the report of 2011 is to highlight the experiences that
had been had in different activities, in other words governments increasingly had
recourse to the defence of State secrets to cover the activities of the secret services.
We also underscored, and the Assembly followed us in this, the need to strengthen
surveillance of the secret services in different countries and we remarked that in
different countries this monitoring is very weak, very loose, especially when one is
dealing with military secret services.
...
Now as to the sources, well, one might say why did the source that mentioned
Poland or Romania not say anything about Lithuania? Well there is a rather simple
reason for that and this is a reason which we did not grasp initially, but as we moved
on we did understand. It is because the timeframes are different and those responsible
in the CIA that were dealing with these programmes were not necessarily the same
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
people. Therefore those who knew about Poland did not necessarily know about
Lithuania and these are sources that we found subsequently. And that is the reason
why there was practically no source that was aware of everything, because there was a
continuum over time with different phases as Mr [J.G.S.], I believe, was able to
establish with great precision. ...”
382. In reply to the judges’ question whether it could be said that
Lithuania knew, or ought to have known, of the nature of the CIA rendition
programme operated on its territory in 2005-2006 and whether this
knowledge was such as to enable the Lithuanian authorities to be aware of
the purposes of the CIA aircraft landings in Lithuania in 2005-2006, Senator
Mary testified:
“Well, again, it depends upon what you mean by authorities. If you’re talking about
the Government, I say no. If you’re talking about Parliament – the Lithuanian
Parliament, but that also applies to the Polish Parliament or the Romanian one – I
would say no, because this operation – I like to recall for the record – was governed
by the ‘need to know’ secrecy principle. So only those who absolutely had to know
things, and even those who came to know, were not necessarily aware of all the
details, that is the fundamental principle that governs the highest degree of military
secrecy which is strictly regulated by NATO. So we never affirmed that it was the
fault of the Lithuanian Government, we say that there are people at the highest level
of the State in Lithuania, as in Poland, as in Romania, or Italy or Germany,
who had knowledge of what was going on. Amongst those people, limited in
number – politically speaking – they perhaps did not know all the details.
What is important to know is that somebody allowed the CIA to move about freely,
to have access to venues or buildings or premises where they were allowed to do what
they wanted without any control whatsoever. I believe that that is the key to the
problem. It is a complicity that was not active in any case. I imagine that no
Lithuanians, no Poles, no Romanians, participated in these interrogations which were
in fact torture pursuant to the International Convention against Torture, but people did
not want to know this at a certain level, among certain representatives of the State,
they did not want to know. That is the real problem. In criminal law you would talk
about reckless conduct.”
383. Replying to the Government’s question as to what would be his
opinion on Mr J.G.S.’ statement that the 2014 US Senate Committee Report
in sections relevant for the present case did not indicate the applicant’s
name, Senator Marty stated:
“It is true, it does not indicate countries either, but if we are cognisant of all the
details of the case, if we know all the plane movements, if we know the movements of
those detained during that time, it is relatively easy to reconstruct and come to the
affirmation that Mr J.G.S. made. This obviously requires some analysis and
cognisance of all the details of this rather complex case. However, if one takes the
trouble to reconstruct, and Mr J.G.S. has already demonstrated this to me several
times, you can only come to that conclusion.”
384. In response to the question from the applicant’s counsel as to how
he would categorise the attitude and the level of cooperation of the
Lithuanian authorities with his inquiry or, in so far as he was aware, with
other international inquiries, Senator Marty said:
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
189
“The attitude of Lithuania fully tallies, I would say, with all the other European
countries that have had dealings with this CIA programme. One of the only countries
where a minister immediately called me when I sent out the questionnaire and told
me, “well look, I don’t know anything at all”, was Luxembourg. Even my own
country – Switzerland – showed itself to be extremely reticent in responding to some
of my questions.”
C. Mr J.G.S.
385. Mr J.G.S. is a lawyer and investigator. He worked on multiple
investigations under the mandate of the Council of Europe, including as
advisor to the Parliamentary Assembly’s Rapporteur Senator Marty
(2006-2007) and as advisor to the former Commissioner for Human Rights,
Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the
United Nations’ international expert panel on protecting human rights while
countering terrorism. He is presently engaged in official investigations into
war crimes and organised crime cases.
On 2 December 2013 Mr J.G.S. testified before the Court at the
fact-finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see
Al Nashiri v. Poland, cited above, §§ 311-318 and 324-331; and Husayn
(Abu Zubaydah v. Poland, cited above, §§ 305-312 and 318-325).
386. In his testimony before the Court, he stated, among other things, as
follows.
387. In reply to the judges’ question whether, on the evidence known to
him, it could be said that Lithuania knew or ought to have known of the
nature of the CIA extraordinary rendition programme and that that
programme operated on its territory in 2005-2006 and, if so, whether that
knowledge was such as to enable the Lithuanian authorities to be aware of
the nature and the purposes of the CIA aircraft landings on Lithuanian
territory during that period, Mr J.G.S. stated:
“Yes Your Honour, it is my conclusion that the authorities of Lithuania knew about
the existence of this detention facility, and that through the highest levels of their
government approved and authorised its presence on the territory of Lithuania. It is
my conclusion that they certainly should have known the purpose to which this
facility was being put because its nature and purpose was part of a systematic practice,
which had already been implemented by the CIA across multiple other countries,
including territories in the neighbourhood of Lithuania, and had been widely reported
by the time the site in Lithuania became active.
I would point out that there are different degrees of knowledge held by different
sectors of Lithuania’s authorities. Of course, on the operational level the details are
restricted to a very small number of trusted counterparts, primarily within the secret
services, but I am not aware of any single instance of a CIA secret detention site
having existed anywhere in the world without the express knowledge and
authorisation of the host authorities. I have no reason to believe that Lithuania was
any different.”
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388. Replying to the Government’s question as to whether he had any
data confirming that the aircraft that he mentioned had actually landed in
Lithuania in February 2005 and March 2006 and had been used for the CIA
renditions and not for other purposes in Lithuania, Mr J.G.S. testified:
“In order to provide categorical evidence of where and when particular aircraft
landed, investigations have normally relied upon information generated in the host
state, so, for example, where an airport authority has serviced an aircraft or ground
handling company has administered services to an aircraft. Normally these would be
Lithuanian entities providing document from Lithuanian sources in respect of exactly
where. Now, in respect of these aircraft, we are in possession of certain Lithuanian
documents, furnished by notably the airport authorities and also some of the
navigation services, including real-time logs, which appear to confirm their landings
at Vilnius and Palanga respectively. However, these landings are not the primary
focus of the documentation that we assemble from the international perspective. The
international perspective tends to tell us what their destinations were and, importantly,
what their purposes were. So it is through the collation of that first category of
evidence with the second category of evidence that we arrive at conclusions as to the
purpose of the flight. And in this respect I can say the following: the aircraft I have
mentioned were contracted by the CIA through its established network of contractors
including Computer Sciences Corporation, Sportsflight Air Inc., and individual
aircraft operating companies for the express and exclusive purpose of transporting
detainees between CIA operated detention sites.
The particular contract in question associated with a unique billing code was
administered solely for that purpose and in the course of my decade of investigations I
have documented scores of rendition flights performed under this same contract, this
same billing code, for the express and exclusive purpose of transporting detainees.
There is not an alternative under that contractual designation, so on the second part of
your question, Madam, I would say that the purpose was detainee transfer.”
389. In response to the Government’s question regarding his statement
that the highest officials in Lithuania knew about the detention site, as to
whether he had any information about any specific official who had given
his consent for the programme, he stated:
“With regard to Lithuania’s officials’ responsibilities, I have not undertaken the
investigation to the same degree of rigour that I was able to do when I worked on
these cases full-time for the Council of Europe. I can postulate that persons in
positions of highest authority in Lithuania, indeed analogous positions to those whom
we named in respect of Poland and Romania, would have been among those who
knew. But personally I have not satisfied myself of any specific individual’s
knowledge and it is purely by virtue of not having had the opportunity to investigate
that matter with a sufficient degree of investment, time or rigour.”
D. Mr Black
390. Mr Black is an investigator with the Bureau of Investigative
Journalism and with Reprieve, having an extensive experience in the field of
the CIA extraordinary rendition programme. On two occasions, in 2012 and
2015, he was heard as an expert in the LIBE inquiry into the alleged
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191
transportation and illegal detention of prisoners in European countries by
the CIA (see also paragraphs 288 and 294 above). He was involved in the
preparation of the 2015 Reprieve Briefing and also prepared for the LIBE a
briefing of 15 September 2015 on “CIA Detention in Romania and the
Senate Intelligence Committee Report” (“the 2015 LIBE briefing”; see also
Al Nashiri v. Romania, cited above, §§ 288 and 355-358).
Since 2010 Mr Black has continuously carried out research on the CIA
Eastern European “black sites”.
391. In his testimony before the Court he stated, among other things, as
follows.
392. In reply to the judges’ question whether it could be said that that
Lithuania knew or ought to have known of the nature of the CIA
extraordinary rendition programme and that that programme operated on its
territory in February 2005-March 2006 and, if so, whether that knowledge
was such as to enable the Lithuanian authorities to be aware of the purposes
of the CIA aircraft landings during that time on Lithuanian soil, Mr Black
testified as follows:
“I think it is pretty clear from the Senate Report that Lithuanian officials were aware
of the programme operating on their soil. And there are two reasons that I would cite
to support this conclusion. One is the reference to an official in the country that hosted
site Violet being quite shocked but giving approval to the hosting, to the use of the
site. And the other is the fact that we see from that same report that host country
officials refused to allow medical access or access to their medical facilities for people
in that site. I do not think it is logical to assume that they would not have allowed such
access unless they believed that there was a particular security risk that was associated
with the people who they believed were being held in that building. And I should add
also, as in the case of Romania and indeed Poland, it is also clear from the Senate
Report that the Lithuanian State received money for allowing their soil to be used in
this manner. However, it is not clear how much money, we can only say that it is a
certain number of millions of dollars but we cannot say, I do not know how many
millions.”
393. The Government asked questions regarding Mr Black’s statement
that medical aid had been denied to the CIA detainees, which were
formulated as follows.
– Question no. 1 “Am I right ... that the same US Senate summary states
that national institutions refused access of high-value ... CIA detainees, to
medical institutions?”
– Mr Black’s reply:
“Yes, that was specifically stated of Site Violet in the Senate Report and it was also
discussed in the new release of the, I think it is called, the facility audit, which is one
of the documents released in the last few weeks by the CIA. That document describes
the problems that the CIA had in 2005 and 2006 getting medical attention in host
countries. Now the new document, the facility audit, does not specifically mention
which countries it refers to, although the only countries that were operating at the time
that it covers were Lithuania and Afghanistan. The Senate Report on the other hand,
contextually, in that paragraph it is clear, I believe, that it references to Lithuania and
what it says is that they did not have the right type of medical facilities on their site to
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
deal with medical problems and that they initially had an agreement with the host
country that the host country would provide medical facilities in such eventualities.
The host country had decided that it was not going to do that. The word that is used in
the facility audit is that it “reneged”. I do not think that word is used in the Senate
Report.”
– Question no. 2: “Reading the Report summary it is really difficult to
read it, but we have an impression that national institutions did not have
knowledge as to what took place there. So if they did not know, how could
they deny access?”
– Mr Black’s reply:
“Well, I think it is unequivocal that the Report summary says that a host country
official was quite ‘shocked’ and I think that you can draw your own conclusions as to
under what circumstances somebody might be shocked. I think that, generally
speaking, it is pretty clear that as far as I can say from my accumulated knowledge of
the CIA secret detention programme and certainly from my close reading of the
Senate Report over the last year and a half, since it came out, my feeling is quite
clearly that some host country officials always knew that there were prisoners held in
these facilities. That does not imply that every single host country official knew. I
believe the number is probably different in each different case, but I think it is clear
that (a) at least some knew that there were prisoners being held on their territory and
(b) they knew that they were receiving money to facilitate this. I think we can be clear
that this is what the Senate Report says.”
394. In reply to the Government’s question as to whether he happened to
know the names of the Lithuanian officials who had known of the above
elements, Mr Black said:
“No, I do not. I have not undertaken research into specific Lithuanian officials and
what they might or might not have known. I have endeavoured to make the
information that I have available to Lithuanian officials. I have sent information, quite
exhaustive information, about flights and contracts to the Lithuanian prosecutor to
which I never received any response incidentally. But I have not beyond that tried to
research personal knowledge by specific officials in Lithuania.”
395. Lastly, in reply to the questions from the applicant’s counsel
regarding Mr Black’s field investigation undertaken in Lithuania and
whether, to his knowledge the prosecutor’s office had ever contacted eye-
witnesses interviewed by Mr Black, he stated:
“My field investigation, when I was interviewing local eyewitnesses, was largely in
2011, and at that time we asked each individual who we interviewed as to whether or
not they had been approached by a representative of the prosecutor’s office to take a
statement and they all said no. I do not know whether subsequently after that time,
2012 onwards, whether or not they might have been interviewed by the prosecutor, I
could not say.
...
[T]o the dossier which I submitted after the publication of the Senate Report, in
other words in January 2015, there was no response whatsoever. The purpose of that
dossier was to essentially demonstrate the correlation between Lithuania and Site
Violet. So no, there was no response to that. I believe that in 2012, when we at first
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193
identified the precise, the full contracting details and route of N787WH, I believe we
published that material but we also wrote to the prosecutor offering, I guess, to engage
in a dialogue about the material or to offer whatever assistance regarding that material
the prosecutor’s office might want. But again, we received no response to that either.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE
ADMISSIBILITY OF THE APPLICATION
A.
Lithuania’s lack of jurisdiction and responsibility under the
Convention in respect of the applicant’s alleged rendition to
Lithuania, detention and ill-treatment in a CIA detention facility
in Lithuania and transfer out of Lithuania and the applicant’s
lack of victim status
396. Article 1 of the Convention states:
“The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of [the] Convention.”
397. Article 34 of the Convention states:
“The Court may receive applications from any person, non-governmental
organisation or group of individuals claiming to be the victim of a violation by one of
the High Contracting Parties of the rights set forth in the Convention or the Protocols
thereto. The High Contracting Parties undertake not to hinder in any way the effective
exercise of this right.”
1. The Government
398. At the outset, the Government submitted that the facts of the case
as described in the application amounted to a mere re-statement of some
inquiry reports and various press reports without disclosing even one
credible fact. The facts seemed to be based on the beliefs and assumptions
of the applicant’s lawyers. For instance, in support of the allegation that the
applicant had secretly been detained in Lithuania, his counsel had cited a
passage in a media report saying that “according to two former US
intelligence officials” Abu Zubaydah had been held in “a secret prison in
Lithuania”.
399. The Government stressed that the complaints raised in the
application were related to charges of exceptional gravity – they concerned
alleged incommunicado detention, torture and inhuman treatment, secret
rendition, abduction and forcible disappearance, which were all serious
crimes within the meaning of international criminal law and which would in
any event constitute grave violations of human rights. They thus asked the
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Court to assess evidence presented by the applicant with particular
circumspection.
In that regard, they referred to the Court’s case-law regarding victim
status which stated that a mere suspicion or conjecture was not enough to
establish such status and that, in order to be able to claim to be a victim, an
applicant must produce reasonable and convincing evidence. They also
relied on rulings of the International Court of Justice, in particular in the
case of Bosnia and Herzegovina v. Serbia and Montenegro (Judgment of
26 February 2007, § 209), in which that Court held that “claims against a
State involving charges of exceptional gravity must be proved by evidence
that is fully conclusive”, and also on the judgment in the Corfu Channel
case (United Kingdom v. Albania, ICJ Reports 1949, p. 17).
400. At the public hearing, the Government expressed their regret that
the applicant had been subjected to particularly brutal and degrading
treatment as part of the CIA’s secret High-Value Detainee (HVD)
Programme, which was totally irreconcilable with the basic principles of
democracy, respect for human rights and the rule of law guaranteed by
international and national law. The facts as established in various
international investigations and by the Court in Husayn (Abu Zubaydah)
v. Poland (no. 7511/13, 24 July 2014), had revealed the shocking scale of
that Programme. The Government did not contest those facts. However,
they were convinced that no violation of the applicant’s Convention rights
had taken place in Lithuania.
401. Having regard to all evidence produced by the applicant and heard
by the Court, the Government considered that there were no objective
grounds on which to conclude that any of the aircraft referred to by the
applicant had been used to transfer him or any other person to Lithuania.
Nor were there any grounds to establish that a CIA secret detention facility
had operated on the territory of Lithuania during the relevant or any other
period. The evidence collected in the case was not sufficient to establish
links between the applicant’s allegations and Lithuania.
402. The Government regretted that the case was being heard before the
final conclusion of the pre-trial investigation by the Lithuanian Prosecutor
General’s Office, which, after being discontinued in 2010, had been
re-opened in 2015 and was currently ongoing. This, in their view distorted
the principle of subsidiarity underlying the Convention system. As a result,
in order to protect the interests of the current investigation, the Government
would have to base their arguments as to Lithuania’s lack of responsibility
under the Convention on evidence gathered in the course of the
investigation conducted in 2010.
403. To begin with, they said, the applicant’s arguments as to
Lithuania’s involvement in the CIA secret detention programme constituted
a mere presumption based on the alleged existence of some political
agreements to that effect. Yet not a single high-ranking State politician or
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
195
official had ever in any way admitted to having known of or agreed to the
country’s involvement in CIA detention facilities. There was sufficient
evidence from the State officials and State Security Department officials
and the persons who had held the office of the President of the Republic to
corroborate that they had not had any knowledge of any such involvement.
In that respect, the Government emphasised that the President of the
Republic, who was the Head of State and the Commander-in-Chief of the
armed forces, had not given his consent for the operation of CIA detention
centres and all persons who had held that office did not have any knowledge
about the programme. All the high-ranking officials who had worked for the
SSD had merely known of some theoretical considerations that there might
have been some requests for assistance in the “war on terror”. This
consistent and clear evidence could not be refuted merely by the
information in the public domain relied on by the applicant.
404. They further stressed that the applicant’s allegations concerning his
secret rendition to and from Lithuania, and his detention and ill-treatment in
CIA secret facilities in Lithuania, had been rejected as unfounded in the
course of the pre-trial investigation carried out by the Prosecutor General’s
Office in 2010. In their opinion, particular importance must be attached to
the prosecutor’s conclusion that no evidence had been obtained concerning
unlawful rendition by the CIA of any persons, including the applicant, to or
from Lithuania. Having established that the applicant had not been
transferred to or kept in Lithuania, or sent to other countries from Lithuania,
either by its own officials or agents of the CIA, it must likewise be
concluded that Lithuania could not be held responsible for any such actions
since the applicant had not been within its jurisdiction.
405. Consequently, given Lithuania’s lack of jurisdiction and the fact
that the applicant’s allegations of secret detention in the country had not
been proved beyond reasonable doubt, no responsibility under the
Convention could be attributed to the Lithuanian State. Likewise, since
there had been no evidence that the facts as alleged by the applicant had
taken place, the applicant could not be considered a victim of the acts
complained of within the meaning of Article 34 of the Convention.
2. The applicant
406. The applicant asked the Court to dismiss the Government’s
preliminary objections. He underlined that the Government’s submissions in
respect of a lack of evidence in his case failed, in various respects, to take
account of the nature and characteristics of the extraordinary rendition and
secret detention programme, which was designed and implemented to
ensure that no information came to light and that any evidence would be
withheld or destroyed. It was inherent in the nature of these practices that
some of the key information lay solely with the State authorities and was
therefore very difficult, indeed often impossible, for individual applicants to
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
secure. In the absence of a meaningful official investigation, as in the
present case, evidence would necessarily be limited.
407. In addition, the applicant was operating under a unique set of
encumbrances, arising out of the anomalous and abusive circumstances in
which he was currently detained, posing unprecedented levels of difficulty
in the presentation of his case. The Government, in their submissions, had
made no accommodation for the applicant’s circumstances or for the context
within which the CIA rendition programme had operated.
Despite the challenges, the applicant had presented a compelling case
that relied on evidence from a wide range of sources. His case was
supported by extensive corroborative material that provided both direct and
indirect evidence of the Lithuanian State’s involvement in the rendition
programme, and its responsibility for violations of the applicant’s rights
through its acts and omissions.
408. In the applicant’s submission, the Government’s arguments in
support of their contention that the case be dismissed for lack of evidence of
State responsibility should be refuted. The same applied to their objection as
to the applicant’s victim status.
The CIA rendition and torture programme simply would not have been
possible but for the willing cooperation of States around the world,
including Lithuania. Lithuania had played a key role in the rendition
programme. Its role had come at an advanced stage, when knowledge of the
facts, concerning the abusive nature of the secret detention programme, had
been beyond plausible deniability. Despite this, Lithuania had been a
willing partner, actively cooperating with the United States to set up and
operate a secret detention centre on its territory. Despite now irrefutable
evidence that it had hosted a “black site”, Lithuania had still failed to
acknowledge the existence of the site or any responsibility on its part. It had
still failed to engage in a meaningful investigation, and it had still failed to
ensure that those responsible could be held to account or that lessons could
be learned to ensure respect for the rule of law in the future.
As in the applicant’s case against Poland, the evidence against Lithuania
was necessarily drawn from diverse sources and had to be considered as a
whole. Taken together, these sources provided overwhelming evidence of
Lithuanian responsibility for violations of Articles 3, 5, 8 and 13 of the
Convention.
409. Furthermore, it was well established that the standard for
responsibility under the Convention, was whether the State “knew or should
have known” of a real risk of violations and had failed to take reasonable
measures to prevent the violations. In the applicant’s view, Lithuanian
responsibility on this point was plain. Lithuania not only should have
known, it in fact had known of the risk of violations, and not only had it
failed to prevent them, it had actively helped to facilitate them. Lithuania
had been the last European “black site”, the applicant’s detention there
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197
taking place in 2005-2006. The Court in Husayn (Abu Zubaydah) v. Poland
had found that already by 2002-2004 there had been widespread generalised
knowledge about secret unlawful detention and ill-treatment by the US.
There was simply no plausible room for doubt as to knowledge of the nature
of the secret detention system in 2005 and 2006.
3. The Court’s assessment
410. The Court observes that in contrast to cases where objections that a
State had no jurisdiction were based on an alleged lack of the respondent
State’s effective control over the “seceded” territory on which the events
complained of had taken place (see Ilaşcu and Others v. Moldova
and Russia [GC], no. 48787/99, §§ 300-304, ECHR 2004-VII) or the
alleged lack of attributability on the grounds that the events complained of
had occurred outside the respondent State’s territory and were attributable to
another entity (see Loizidou v. Turkey (preliminary objections), 23 March
1995, §§ 47 and 56, Series A no. 310; and Cyprus v. Turkey [GC],
no. 25781/94, §§ 69-70 ECHR 2001-IV), in the present case the
Government’s objection in effect amounts to denying that the facts adduced
by the applicant in respect of Lithuania had actually ever taken place and to
challenging the credibility of the evidence produced and relied on by the
applicant before the Court (see paragraphs 396-402 above).
The Government’s objection alleging that the applicant lacks victim
status for the purposes of Article 34 of the Convention is based on similar
arguments (see paragraphs 396 and 402 above).
411. The issues of the Lithuania’s State responsibility under the
Convention and the applicant’s victim status are therefore inherently
connected with the establishment of the facts of the case and the assessment
of evidence. Consequently, in order to determine whether the facts alleged
by the applicant are capable of falling within the jurisdiction of Lithuania
under Article 1 of the Convention and the applicant can be considered,
under Article 34, a “victim of a violation ... of the rights set forth in the
Convention” by the respondent State, the Court is required first to establish,
in the light of the evidence in its possession, whether the events complained
of indeed occurred on Lithuanian territory and, if so, whether they are
attributable to the Lithuanian State. The Court will therefore rule on the
Government’s objections in the light of its findings regarding the facts of
the case (see paragraphs 584-585 below).
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B. Non-compliance with the rule of exhaustion of domestic remedies
and the six-month rule
412. Article 35 § 1 of the Convention states:
“The Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law, and within
a period of six months from the date on which the final decision was taken.”
1. The Government
(a) Non-exhaustion of domestic remedies
413. In the Government’s submission, the applicant failed to exhaust all
effective domestic remedies in respect of his complaints under Articles 3, 5
and 8 of the Convention.
In their initial observations, they maintained that, pursuant to the relevant
provisions of the Code of Criminal Procedure, any person considering that
he had been unlawfully detained (a crime defined in Article 146 of the
Criminal Code) had the right to challenge, in person or through a legal
representative, the lawfulness of the detention. Furthermore, he could seek
redress, under Article 6.272 of the Civil Code, for any damage incurred on
account of such unlawful detention.
They also stressed that torture or inhuman and degrading treatment were
prohibited under Lithuanian law, and any person considering that he had
been subjected to ill-treatment could address the competent authorities and
request that criminal proceedings be brought (e.g. under Articles 100 or 228
of the Criminal Code). In that context, criminal liability under other Articles
of the Criminal Code might also have arisen (e.g. Articles 291 and 292).
Any victim could seek redress for the damage incurred due to ill-treatment
before the ordinary or administrative courts (under Articles 6.271 or 6.272
of the Civil Code). A person who was a victim of a crime was entitled to
participate in criminal proceedings (Article 28 of the Code of Criminal
Procedure) or could submit a civil claim in the course of the criminal
proceedings, seeking redress for the damage incurred as a result of a
criminal offence (Article 109 of the Code of Criminal Procedure).
In sum, where a crime had been committed, the domestic legislation
provided a victim of a crime with several legal avenues for the purpose of
having perpetrators prosecuted and obtaining pecuniary compensation.
414. However, the applicant had failed to have recourse to any of those
legal remedies available under Lithuanian law.
In particular, in the course of the pre-trial investigation carried out by the
Prosecutor General’s Office in 2010, Reprieve – which alleged to be “acting
on behalf of the applicant” – had never asked the prosecution to recognise
the applicant as a victim or had presented any authorisation from the
applicant to do so. The applicant had never addressed the national
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199
competent authorities in person or through his representatives as regards the
alleged breaches of the Convention committed by the Lithuanian authorities
to his detriment.
As to the possibility of requesting the institution of criminal proceedings,
it should be noted that according to the relevant legal provisions, a
prosecutor might institute a pre-trial investigation either on his own motion,
having established elements of a criminal offence, or upon receiving a
notification or request indicating that a criminal offence had been
committed. However, in both instances certain factual information had to be
presented to the prosecuting authorities in order for them to initiate a
pre-trial investigation. Neither the applicant himself nor Reprieve, which
had addressed the Prosecutor General’s Office on several occasions, ever
presented to the prosecution any factual data or credible evidence in support
of their allegations concerning the alleged rendition of the applicant to and
from Lithuania or his alleged incommunicado detention at “secret CIA
facilities” in Lithuania.
415. In view of the foregoing, the Government asserted that a domestic
remedy had been, and still was, available to the applicant, should he ever
produce evidence showing the slightest link between him and the Republic
of Lithuania. However, apart from some information about the flights and
the routes of the aircraft – on which, as it had been established in the course
of the pre-trial investigation – no detainees had been transported to and from
the territory of Lithuania, the applicant had so far not made a sufficiently
credible allegation of having been secretly detained and ill-treated in the
country.
416. In their further pleadings, lodged after the pre-trial investigation
had been re-opened on 22 January 2015, the Government asked the Court to
consider the fact that fresh proceedings relating to the applicant’s
allegations were ongoing in its assessment of the applicant’s compliance
with the exhaustion rule.
(b) Non-compliance with the six-month rule
417. The Government further argued that the applicant had also failed to
comply with the six-month time-limit under Article 35 § 1. They maintained
that, even assuming that the events complained of by the applicant had
indeed taken place, the application had been lodged out of time.
The Government were of the view that the period of the six months had
started to run on the day when the applicant’s alleged detention in Lithuania
ended, i. e. according to his statements, on 25 March 2006. In any event, the
latest date on which the applicant could have become aware of his allegedly
unlawful detention and ill-treatment in Lithuania was in 2008 when he had
supposedly had his meeting with Mr Margulies, his US counsel.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
Accordingly, had the applicant considered himself a victim of
Convention violations on the part of Lithuania, he could have initiated the
proceedings before the Court much sooner.
2. The applicant
418. The applicant invited the Court to dismiss the Government’s
preliminary objections.
(a) Non-exhaustion of domestic remedies
419. The applicant emphasised that the Court had repeatedly
acknowledged that in cases involving violations of Article 3, the appropriate
remedy to pursue for exhaustion purposes was a criminal investigation and
process. The Government, however, had alleged that the applicant had
failed to exhaust domestic remedies as Reprieve had not requested victim
status for him. The requirement to have exhausted domestic remedies under
the Convention did not require that victim status be requested in national
proceedings, it was sufficient to have complained to the relevant authorities
that a crime had been committed. The correspondence from Reprieve could
not be interpreted in any other way than having raised such a complaint.
They had done so not only in the first letter but also in subsequent
correspondence.
420. Referring to El-Masri v. the former Yugoslav Republic of
Macedonia ([GC], no. 39630/09, § 140, ECHR 2012) the applicant further
pointed out that the Court had held, while finding that domestic remedies
had been exhausted by the fact of a rendition victim alerting the prosecuting
authorities, as follows:
“If the actions of the State agents involved have been illegal and arbitrary, it is for
the prosecuting authorities of the respondent State to identify and punish the
perpetrators. Alerting the public prosecutor’s office about these actions must be seen
as an entirely logical step on the part of the victim”.
The applicant considered that the rationale of the Court in the El-Masri
case applied a fortiori to the present case, leading to the conclusion that he
had taken all measures that could reasonably have been expected of him in
the circumstances to exhaust domestic remedies. To suggest that the efforts
to secure justice in Lithuania had, in all the circumstances, been insufficient,
on the basis of a lack of personal involvement or a lack of formal
authorisation, was, in his view, a short-sighted and formalistic approach
inconsistent with the need to interpret and apply the Convention in a way
that rendered its rights practical and effective. The Government’s arguments
were moreover disingenuous in that they could not meaningfully contend, in
the light of their arguments on the nature of the investigation and the
reasons for the decision to close it, that had the applicant applied for victim
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201
status, or had a written legal authorisation form been obtained, the outcome
of the domestic process could or would have been any different.
(b) Non-compliance with the six-month rule
421. In the applicant’s submission, the Government’s argument that the
time-limit of six months should have run from the day when the applicant’s
alleged detention in Lithuania had ended, despite the fact that he had
continued to be kept in secret CIA incommunicado detention at that time
and for sometime thereafter, was an absurdity. Likewise, their further
argument that his meeting with Mr Margulies in 2008 represented, in
temporal terms, the outer limit beyond which the current application fell
foul of the six month time limit could not be accepted. Neither suggestion
stood up to scrutiny when considered in the overall context of the
applicant’s circumstances and the availability of information concerning
extraordinary rendition and secret detention in Lithuania.
The applicant had requested a criminal investigation, in pursuit of the
only effective remedy in cases of this nature, and had urged that certain
investigative steps be taken which should have prompted a pre-trial
investigation under Article 166 of the Lithuanian Code of Criminal
Procedure. Subsequently, on 14 January 2011, the Prosecutor decided to
discontinue the pre-trial investigation. The applicant submitted an
introductory complaint to the Court on 14 July 2011. Accordingly, he had
taken his case to the Court within six months from the closure of the
domestic investigation at which time it had become indisputably apparent
that there would be no effective domestic remedy in Lithuania.
3. The Court’s assessment
422. The Court observes that the Government’s objections raise issues
concerning the effectiveness of the criminal investigation into the
applicant’s allegations of torture and secret detention on Lithuanian territory
and are thus closely linked to his complaint under the procedural limb of
Article 3 of the Convention (see paragraph 3 above and paragraph 588
below). That being so, the Court considers that they should be joined to the
merits of that complaint and examined at a later stage (see, mutatis
mutandis, Al Nashiri v. Poland, no. 28761/11, § 343, 24 July 2014; and
Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further
references to the Court’s case-law).
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II. THE COURT’S ESTABLISHMENT OF THE FACTS AND
ASSESSMENT OF EVIDENCE
A. The parties’ positions on the facts and evidence
1. The Government
423. As noted above, the Government dismissed the applicant’s
allegations as being unsupported by any evidence and, consequently,
lacking any factual basis. They also challenged the credibility of the
evidence relied on by the applicant and denied that Lithuania had any
knowledge of, or complicity in, the operation of the CIA HVD Programme
on its territory at the material time (see paragraphs 398-405 above).
The Government’s conclusions on the facts and evidence were as
follows.
(a) Lack of credibility of evidence adduced by the applicant
424. The Government contested the evidential value of the material
produced by the applicant. They stressed that most of that material had
originated in various public sources whose credibility had not been
verifiable. The Government would not play down the significance of
publicly available information about the CIA’s HVD Programme; indeed, in
the El-Masri case (cited above) similar material on public record had been
taken into account by the Court.
However, in contrast to the present case, that material had constituted
merely a supplementary source for the Court’s findings. In El-Masri the
Court had relied first of all on the applicant’s description of the
circumstances, which had been very detailed and, secondly, on indirect
evidence obtained during the international inquiries and the investigation in
Germany. The Court had had at its disposal scientific evidence, such as a
test of the applicant’s hair follicles, geological records confirming the
applicant’s recollection or sketches of the layout of the prison in
Afghanistan that the applicant had drawn. Only in addition had the Court
relied on the material available in the public domain. In the present case, the
applicant had built his case the other way round, starting from publicly
available information and, in fact, also finishing with it as he had been
unable to produce any other evidence.
425. As regards the applicant’s reliance on the case of Richmor Aviation
Inc. v. Sportsflight Air Inc. (see paragraphs 450-451 below), the
Government saw little, if any, connection with his alleged detention in
Lithuania. The case had concerned a commercial dispute between two
aviation companies, where the plaintiff, Richmor Aviation, had submitted
an invoice to Sportsflight Air demanding payment for unused flight time for
thirty-two months between May 2002 and January 2005. It did not appear
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
203
that the companies had exclusively carried out rendition flights. The aircraft
mentioned in the case-file differed from those appearing in the present case.
The events that had given rise to the litigation had occurred prior to the
flights to Lithuania, before February 2005. Even if the witnesses in the
Richmor case had given some fragmentary testimony to the effect that the
flights contracted by the US Government through the companies at the
material time (from May 2002 to January 2005) and performed by the
Gulfstream IV aircraft could be used sometimes for the purposes of the
rendition programme, this had nothing to do with the flights to and from
Lithuania allegedly used for the applicant’s rendition.
(b) Lack of evidence demonstrating that certain CIA-linked planes landing in
Lithuania between 17 February 2005 and 25 March 2006 carried out
extraordinary rendition missions
426. The Government did not dispute the fact that during the relevant
period, as well as earlier, there had been a number of CIA-linked aircraft
landings in Lithuania at Palanga and Vilnius airports. The circumstances
relating to those landings had been thoroughly analysed in the course of the
pre-trial investigation and no links between the impugned aircraft and the
CIA rendition programme had been established. In particular, all persons
who had been present at the time of arrivals or departures of the planes,
including the airports’ employees, officers of the SBGS and the SSD had
been questioned and all relevant documents had been obtained from the
SSD. From the totality of that material the prosecutor had concluded that no
detained persons had ever been brought into or taken from the territory of
Lithuania. Furthermore, no link had been found between the flights in
question and any detainees of the CIA in general and the Projects No. 1 or
No. 2 in particular. The prosecuting authorities had established that despite
the fact that on some occasions Customs and SBGS inspections had not
been carried out, it appeared from the documents provided by the SSD that
in all instances the SSD officers had had access to the aircraft in accordance
with the Law on Intelligence. It had also been established that the SSD
officers, who had sought and obtained uninterrupted access to the airports’
sectors at which the CIA aircraft had landed, had acted in a lawful manner
and had not abused their office or exceeded the limits of their authority.
427. As regards the flights N787WH of 18 February 2005 and N733MA
of 25 March 2006 indicated by the applicant as those on which he had been
brought into and taken out of Lithuania, the prosecution having investigated
in detail both flights had established beyond any reasonable doubt that no
CIA detainee (including the applicant) had been transported on them. The
same applied to any other CIA-linked flights landings during the period in
question.
The evidence collected in the investigation had revealed the true purpose
of the N787WH’s and N733MA’s landings. In that connection, twenty-six
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witnesses had been questioned and abundant documentary evidence had
been obtained.
428. It had been established that the N787WH flight of 18 February
2005 had arrived with, in the Government’s words, “five foreign citizens of
one State” and three crew members. Needless to say, the Government
added, the applicant had not been among them. All of them had gone
through a State border control for passengers between 20:05 and 20:15 and
again between 20:30 and 20:50. Then the plane had left for Copenhagen.
The purpose of the landing had been a carriage of some specific cargo,
which explained why the vehicle had been seen next to the plane and then
leaving. The carriage of the cargo had been related to the activities of the
SSD, and the nature of the activities explained why the SSD had asked to be
provided with access to the plane.
Likewise, the N733MA flight of 25 March 2006 had brought cargo into
Lithuania and had not been involved in the transportation of the CIA
detainees.
429. Notwithstanding the fact that there was no data in the pre-trial
investigation as to the purpose of the cargo, on the basis of the whole body
of material collected it might be concluded that “some specific cargo” could
have been communications equipment necessary for the technical
maintenance of the implementation of a joint project of the SSD and the
partners. Due to the particular importance of certain cargo, the Intelligence
Services would request direct access to planes. For this purpose, as
confirmed by witnesses M, O and N, classified letters used to be written to
the airport and the SBGS.
As regards the flight N787WH on 18 February 2005 it might be
concluded that five persons, US citizens, had arrived at Palanga airport. As
regards the cargo on the flight N733MA of 25 March 2006, it might be
concluded that some equipment could have been carried on the flight at
issue. It had been packed in boxes of not less than one metre in length,
which, as V confirmed, had been carried by two persons. There was a record
in the investigation file showing that the cargo could have been exported by
the flight on 25 March 2006, as confirmed by officer O. According to the
testimony of the witnesses, it might be concluded that the vehicles of
partners used to enter and leave the airports escorted by the SSD officers.
The officers used to escort them to the plane; officer V had stated that he
had been fifty metres away from the plane.
The investigation file included the SSD’s requests submitted in respect of
both flights; both of them had been duly reasoned and indicated the purpose
of the flights, which constituted a State secret. No customs control had been
performed in either case, not because of the SSD’s requests but due to legal
regulations under which it had not been obligatory and could be performed
on an occasional basis.
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205
430. The SSD had asked the administration of the airport in both
instances to allow their officials to access the airport in order to carry
consignments and parcels from the airport to their final destination and
nothing else. The SSD had never asked for a customs or State border control
not to be carried out. It had not interfered in any way with the functions of
the State Border Security Service. According to testimonies of many SSD
officials, these two flights had not been exceptional and they were not the
only ones where the SSD had asked for permission to have access to certain
aircraft. In general, over the years 2005-2006 there had been an enormous
number of flights of various NATO States with military, official and non-
official delegations. According to the testimony of the director of the Civil
Aviation Authority, Palanga International Airport had mostly been used for
those landings since it received less flights than Vilnius International
Airport.
431. All the SSD officials involved in the reception and transport of the
cargo had been questioned by the prosecutors in that connection and had
described in detail what the cargo looked like, where it had been
transported, whether anyone else had been able to see it and why special
supervision of the SSD had been needed. All of them had testified that it
had been only boxes which had been unloaded first from the aircraft and
then other boxes and some parcels which had been loaded into the aircraft.
There had been many of them, all of the same size, definitely too small to
place any person inside. The loading itself had been carried out openly and
could be seen by the employees of the airport. The boxes brought by the
aircraft had been carried by the SSD officials to Vilnius, but not to Project
No. 1 or Project No. 2.
432. At the public hearing, answering the judges’ questions as to the
nature of the cargo, the Government further explained that the cargo had
contained “special equipment that had been meant for a special investigation
department” – and that the purpose had been “to equip this department and
its personnel”.
(c) Lack of evidence demonstrating that a CIA secret detention facility
operated in Lithuania and that the applicant was detained in that facility
(i) As regards the alleged existence of a CIA secret detention facility
433. The Government maintained that the pre-trial investigation had
established conclusively that no secret prison run by the CIA had existed in
Lithuania.
In particular, the applicant’s allegation that a CIA secret detention
facility had operated on the premises of Project No. 2 and that Project No. 1
had been designated for that purpose but not used as such had lacked any
factual basis.
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434. It was true that Project No. 1, which had been carried out in 2002
by the SSD and the CIA and the Project No. 2, which had been
implemented by the same partners in 2004, had involved the reconstruction
and fitting-out of certain premises. However, evidence gathered by the
prosecutor had conclusively excluded the possibility of either of these
premises having been used as a prison for CIA detainees.
435. In the course of the pre-trial investigation numerous persons had
been questioned – not only those who had participated directly in the
construction works on Project No. 1, but also those responsible for its
subsequent use.
Having analysed all relevant evidence, the prosecutor – contrary to the
statement made by the CNSD that “conditions [had been] created for
holding detainees” – had concluded that this building had been used
exclusively by the SSD officers and that it had been absolutely unsuitable
for holding detainees due to its geographical location (the city centre) and
the facilities on the premises.
In that regard, the Government also underlined that the CNSD Findings
had to be seen in the light of its competence and the nature of parliamentary
inquiries performed by it. According to the Constitutional Court’s ruling of
13 May 2004, “the Seimas [was] neither an institution of pre-trial
investigation, nor a prosecutor’s office, nor the court” and therefore its
conclusions were not “binding on institutions of pre-trial investigation, the
prosecutor’s office or the court” (see also paragraph 219 above).
436. The premises referred to as Project No. 1 were situated in an
auxiliary building in the yard next to the main building at Z. Sierakausko
Street in Vilnius where the premises of the SSD had been located at the
material time. In 2002 the auxiliary building had been in an emergency
condition, and repair works had been needed. As all repair works had been
documented, the documentation had been received and analysed by the
prosecutor. The builders had confirmed that no wishes had been expressed
by the SSD officers that the work be related to the detention of any persons.
One of the witnesses, who, at the relevant time, had been in charge of the
administration of both Projects No. 1 and No. 2, had described the purpose
of the premises in the building referred to as Project No. 1 at Z. Sierakausko
Street for which they had been fitted out, though he had testified that the
premises had never been used since 2002 for that particular purpose. This
purpose had been closely related with the structure and functions performed
by the SSD, which in themselves constituted a State secret and therefore
could not be declassified. Those statements had been corroborated by many
other lower SSD officials and technical workers, who had testified that the
premises had never been used for any other purposes that were not related to
the needs of the SSD.
437. As regards Project No. 2, the Prosecutor General’s Office, based on
witness testimony, had established that no special facilities suitable for
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207
holding detainees had ever been installed inside the building. In particular,
there had been no premises fitted with bars or otherwise specifically adapted
for detention purposes. Also, it had been established that access had been
permanently controlled and the persons in charge of the building’s security
had confirmed that no detainees had ever been present there. Thus, having
regard to all the relevant evidence, the prosecution, contrary to the CNSD’s
findings that the SSD officers had not always had the possibility of
monitoring the arrival and departure of persons at Project No. 2, concluded
that access to Project No. 2 had been under permanent control, thus ruling
out the possibility of bringing detainees into the building.
438. Project No. 2 was located in Antaviliai. The building had been
acquired for the needs of the SSD in accordance with the requirements of
national law and the repair work on the premises had started in 2004. The
work had been finished in January 2005. All the SSD officials involved in
this project (Director General, Deputy Director General and other SSD
officials of lower rank), had been questioned by the prosecutors. They had
testified that the purpose of the premises in question could not have – and in
fact had not had – anything to do with the detention of any persons. All
witnesses had spoken of classrooms, living and meeting rooms, as well as
sports rooms. The SSD officials of lower rank had been in charge of the
repair work on the premises and the security of the building after its
completion. Having been questioned several times, they had confirmed that
no facilities suitable for holding detainees had ever been fitted in the
building. The building had never been left without supervision of the SSD
officials, who had testified that there had been no secret or closed zones
inside it which would not be accessible to them. Also, in the Government’s
view, the geographical location of the building had made it totally
unsuitable for detention as it was situated in the village of Antaviliai and
surrounded by residential houses.
439. According to the Director General of the SSD at the relevant time,
the building had been used at the beginning of 2005 to a very limited
extent – several meetings took place there. As the SSD officials in charge of
the building’s security had testified, it had been used randomly and only for
short-term meetings in which the SSD officials and their guests had
participated. The visitors had been driven there exclusively by the
authorised SSD officials. Thus, contrary to the findings of the CNSD, it had
not been possible for any other persons save the SSD officials to use the
building at their discretion. In the second half of 2005 the surveillance of the
building had been taken over by the SSD’s section. At that time it had
temporarily not been used at all but had remained open to the SSD
employees. Since 2007 the SSD training centre had occupied the building.
440. All documents related to the Projects No. 1 and No. 2 had been
collected from the SSD, including material containing State secrets. Part of
those documents, for instance the records of the on-site inspection of
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Projects No. 1 and No. 2 together with annexes comprising the photos of the
buildings, premises and their surroundings, had been declassified and
submitted to the Court. The materials clearly showed that no prison could
have been hosted on those premises.
441. In sum, the prosecutor had found that both premises had, at the
relevant time, served other purposes, which had in no way been related to
the holding or confinement of persons, although those purposes could not be
declassified for the simple reason that the SSD’s partner would have to
consent to such disclosure.
442. At the public hearing, the Government reiterated the above
statements. They added that after analysing all the relevant circumstances it
had been established that the flight N787WH on 18 February 2005 and the
flight N733MA on 25 March 2006 had been used for transporting a
special-purpose cargo and that cargo could not contain the applicant or any
other person. It had been the connection equipment for the SSD providing
them and their partners with technical services in order to implement their
joint project. That explained why they had asked for direct access to the
aircraft.
As regards the alleged locations of the CIA prison, Project No. 1 had
been used for operational activities, Project No. 2 had been used for
intelligence activities. The facilities of Project No. 2 had never been used
for their original purpose and they had later been reconverted and used as
the SSD’s training centre.
Replying to the judges’ questions as to why the 2002 SSD Resolution
and the 2002 SSD Action Plan referring to the purpose of the premises to be
selected had spoken of the “extradition of secret intelligence collaborators”,
the Government explained that this was due to the terminology used at that
time – at present that term would correspond to “exfiltration” or
“extraction”, meaning the relocation of special agents or secret agents into
their normal life or natural environment.
The added that, as regards the purposes served by the facilities, Project
No. 1 had been meant for special officers and their “extraction”, while
Project No. 2 had been the support centre for intelligence.
(ii) As regards the applicant’s alleged secret detention in Lithuania
443. The Government argued that there had been no credible evidence
confirming the applicant’s presence on the territory of Lithuania. The
present case was built on some leaked information which had appeared in
media in 2009 and which referred to the alleged existence of CIA secret
detention facilities in Lithuania. That information had never been confirmed
officially, either directly or indirectly.
Moreover, the applicant’s lawyers had referred to unknown “public
sources” indicating that the applicant had been moved from Morocco to
Lithuania in early 2005, that the Lithuanian prison site had been closed in
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
209
the first half of 2006 and that its occupants had been transferred to
Afghanistan or other countries. In essence, the entire case rested on the
routes of certain flights and their alleged links with the CIA. The applicant
had described in detail the routes of N787WH on 15-19 February 2005 and
N733MA on 23-27 March 2006, highlighting the stopovers of the first
aircraft in Morocco and the second one in Cairo. He also referred to some
invoices and contracts regarding those flights which, in his view, indicated
their links with the CIA and the extraordinary rendition programme. Not a
single direct or indirect piece of evidence had ever been produced that
would reveal the slightest connection between the applicant and the flights
in question.
The Government said that in this regard they would appeal to pure
common sense – the routes of the flights demonstrated nothing more than
the fact that the aircraft had landed for a short while in Lithuania. Even if
their links with the CIA were confirmed, this did not prove by itself
Lithuania’s involvement in the HVD Programme, still less the applicant’s
secret detention on its territory.
444. The Government regretted the suffering sustained by the persons,
including the applicant, detained under that programme. However, they
could not but emphasise that while this might have occurred somewhere in
Europe, it had not happened in Lithuania.
(d) Lack of evidence demonstrating that the Lithuanian authorities agreed to
the running of a secret detention facility by the CIA on Lithuanian
territory or cooperated in the execution of the HVD Programme
445. In the Government’s submission, not a single high-level State
politician or official had in any way admitted to knowing of or agreeing to
the involvement of Lithuania in the CIA extraordinary rendition
programme. It was true that the SSD officials had given some consideration
to the possibility of having requests for assistance from the US authorities in
the context of the war on terror but this possibility had proved to be purely
theoretical because there had been no requests for the detention of any
individuals.
In that regard, the Government referred to the statements of the State
officials and the SSD officers who had been questioned in the pre-trial
investigation. They also relied on the letter of 26 November 2009 written by
Mr Adamkus, the former President of Lithuania, to the CNSD in which he
had stated that he had never been informed of any CIA prisons in the
country (see also paragraph 367 above). Nor had any other former President
of the Republic had had any such knowledge. In the investigation the Heads
of State had testified that they had not known about any transfer of any
detainees and had not given their consent to the transportation of any
persons held by the CIA.
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(e) Lack of evidence of Lithuania’s knowledge of the CIA HVD Programme at
the material time
446. The Government said that they agreed with the Court’s conclusions
in Husayn (Abu Zubaydah) v. Poland that without the knowledge of the
State authorities and their assistance, the CIA HVD Programme could not
have been executed, and that the running of the CIA prisons would have
been impossible in the countries concerned. However, as stated above,
Lithuania had not had any knowledge of such activities on its territory. The
fact that in 2005-2006, as the applicant argued, there had been generalised
knowledge of the HVD Programme owing to findings of international
inquiries and public reports disclosing the nature of the CIA secret scheme,
was irrelevant since Lithuania had not been included in any of the inquiries
and there had been no CIA prison in the country.
2. The applicant
447. The applicant maintained that the whole body of evidence from
numerous sources, such as the international inquiries, recent research into
the CIA rendition and secret detention operations, abundant aviation data
confirming the CIA planes landings in Lithuania, declassified CIA
documents, the 2014 US Senate Committee Report and evidence from the
experts heard by the Court conclusively confirmed his allegations.
In his submission, it was established beyond reasonable doubt that a CIA
secret detention facility – referred to as “Detention Site Violet” in the 2014
US Senate Committee Report – had operated in Lithuania in 2005-2006 and
that he had been detained at that facility from 17 or 18 February 2005 to
25 March 2006.
(a) As regards the Government’s allegation of a lack of credibility of sources
of information and evidence before the Court
448. The applicant said that the Government’s objection to his reliance
on public documents, reports and other material as evidence in this case was
unfounded. The Court had on a number of occasions stated that it would
freely evaluate all the evidence, and might draw “such inferences as may
flow from the facts and the parties’ submissions”. The Court routinely relied
on public source evidence; this was demonstrated, for instance, in El-Masri
where the Court had taken into account publicly available information of a
similar nature and evidence from a range of other sources, including reports
from Amnesty International, Human Rights Watch, the International
Helsinki Federation for Human Rights and the ICRC. It had also cited
numerous media reports.
Consequently, the Government’s objections to the nature of the evidence
in the case was not based on the Court’s established approach to evidence.
The Court would take into account all available sources of evidence and
determine whether, in the circumstances of cases such as this, taken together
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
211
they were sufficient to give rise to “strong and concordant inferences” of
State responsibility. In the applicant’s view, the range of evidence submitted
in his case considered as a whole more than satisfied the relevant test.
(b) As regards the CIA-linked planes landing in Lithuania between
17 February 2005 and 25 March 2006
449. The applicant considered that the Government’s suggestion that the
flights referenced in his submissions as being CIA rendition flights, even if
chartered by the CIA, could have had other purposes or simply stopped at
some places for technical reasons, lacked any support in the facts.
While apparently plausible, this assertion had no merit in the context of
the assembled data presented as evidence to the Court. A large number of
international and regional bodies, human rights organisations and respected
and credible media outlets, which had acknowledged the evidence
disclosing that rendition flights flew into and out of Lithuania, disagreed.
For example, on 11 September 2012 the LIBE Committee, following its
April 2012 visit to Lithuania, had issued a resolution noting “new evidence
provided by the Eurocontrol data showing that plane N787WH, alleged to
have transported Abu Zubaydah, [had] stop[ped] in Morocco on
18 February 2005 on its way to Romania and Lithuania”. It had also noted
that analysis of the Eurocontrol data had revealed new information through
flight plans connecting Romania to Lithuania, via a plane switch in Tirana,
Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo,
Egypt, on 26 March 2006. This was mirrored in the findings and reports of
other international organisations.
450. In the light of the accumulated material before the Court it was
evident that the planes passing through Lithuania in February 2005 and
March 2006 had been chartered by the US Government in the context and
for the purpose of the rendition programme. A clear line of evidence
connected these flights to Lithuania.
To begin with, all the flights involved in rendition into and out of
Lithuania had been chartered by a US company, Computer Sciences
Corporation on behalf of the US Government. This prime contract
originated in 2002 with another US company, DynCorp Systems and
Solutions LLC (DynCorp), and was then inherited by CSC through its
purchase of DynCorp in 2004. The US Government’s initial contract with
DynCorp had given rise to a succession of subcontracts, including the
agreement with Capital Aviation of 17 June 2002 and a similar agreement
between Sportsflight Air as authorised agent for DynCorp and plane
operator Richmor Aviation on 18 June 2002.
These companies, along with various other plane operators including
Victory Aviation (operating N787WH) and Miami Air International
(operating N733MA and N740EH), had thereby established a method and
pattern of doing business which had lasted at least until 2006.
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451. The February 2005 flights of N787WH and N724CL, travelling
from the USA to Lithuania via Morocco, had been arranged under CSC’s
subcontract with Sportsflight Air Inc. trading as Capital Aviation. These
flights corresponded to the dates on which information indicated that the
applicant had been transferred from Morocco to Lithuania in early 2005.
The March 2006 flights of N733MA and N740EH had also been arranged
under CSC’s successor subcontract with Sportsflight.
Flights organised and billed by Sportsflight and CSC had been the
subject of civil litigation in New York, concluding in 2011, between
Sportsflight and Richmor Aviation. During this litigation, both parties had
made clear that the flights had been part of the rendition programme and
that the contractual arrangements under which these flights were provided
had been set up to facilitate that programme.
452. Furthermore, all the flights connecting with Lithuania in February
2005 and March 2006, as well as flight N787WH in October 2005,
exhibited a common pattern of behaviour designed for the sole purpose of
disguising the true flight routes, the so-called “dummy” flight planning.
Taking into account, on a cumulative basis, all the available evidence
such as the contracts and invoices, the patterns of behaviour, the statements
made in the litigation referred to above, the timing of the flights, and the
overall context within which rendition flights had been shown to take place,
there was a compelling basis on which to conclude that the sole purpose of
the flights of N787WH, N724CL, N733MA and N740EH had been to
interconnect the CIA’s various secret prison locations. In addition, these
interconnections had been made at times when, according to authoritative
news reports, prisoner transfers had been made between the respective
countries.
453. Lastly, even if one were to leave aside the entire significance of the
above evidence, in the applicant’s view a number of questions would
remain. For instance, why, if these had been entirely innocent or “technical”
stopovers had the SBGS been prevented from inspecting the planes? Why
had the planes been cordoned off by the SSD? Why had a vehicle been seen
leaving one of the planes, and the airport, if this had merely been a
“technical” stop?
(c) As regards the existence of a CIA secret detention facility in Lithuania and
the applicant’s secret detention in Lithuania
454. In the applicant’s submission, the evidence before the Court
established beyond reasonable doubt, based on strong and concordant
inferences of fact, that Lithuania had housed a CIA secret black-site, a site
at which the applicant had been detained between 17 or 18 February 2005
and 25 March 2006. The 2014 US Senate Committee Report had referred to
a detention site codenamed “Violet”, which multiple independent
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
213
investigators had consistently and unequivocally identified as referring to
Lithuania, as confirmed by the experts at the fact-finding hearing.
The 2014 US Senate Committee Report stated that Detention Site Violet
had specifically been developed to ensure that multiple detainees could be
interrogated simultaneously, that the site had begun operating as a detention
centre in 2005 and that it had been closed down in 2006 due to the lack of
medical care for ailing detainees. The report’s categorical findings
corresponded to and confirmed the credibility of a host of other evidence
available at a much earlier stage. This included flight data and contracts,
information collected by the Lithuanian Parliament’s own Committee on
National Security and Defence, the Lithuanian prosecutor’s own
investigation file, the statements and findings of multiple additional
inquiries at the regional and international level and the work of
non-governmental organisations, journalists and investigators.
455. At the fact-finding hearing the Court had heard evidence from the
experts of the highest calibre who, having investigated and analysed the
CIA HVD Programme for many years, had confirmed that, consistent with a
cyclical pattern of sudden site closures, Lithuania had undoubtedly set up a
secret detention site in 2005 following the closure of the site in Morocco.
Lithuania had become, as Mr J.G.S. had described it, the hub for
detention of high-value detainees at that point. It had been the experts’ firm
and consistent professional assessments as investigators, that the evidence
had showed that Abu Zubaydah had been among those detained in
Lithuania. Senator Marty had noted that if one had taken the trouble to
reconstruct the story, one could only come to that conclusion. Mr J.G.S.’s
work had definitively associated Abu Zubaydah with Lithuania and
Mr Black had found that the detention of Abu Zubaydah in Lithuania had
been beyond reasonable doubt.
456. One aspect of the evidence before the Court, considered in detail by
the experts, included evidence from multiple sources that showed the
landing of rendition flights in Lithuania on 17 and 18 February 2005, having
followed a circuitous route, from the United States via Morocco, where the
applicant was known to have been detained at the relevant time. Likewise it
showed that on 25 March 2006 another rendition flight departed from
Lithuania, en route to Afghanistan, where again it was known that the
applicant had been detained in 2006. False flight plans had been filed for the
Lithuanian leg of these journeys, showing alternative destinations in
accordance with standard modus operandi for rendition flights.
The Government had argued that there was no evidence that these had
been rendition flights. Yet the pattern these flights displayed, the paths they
had taken, and the contracts and invoices, combined with other
corresponding details, had led to them being consistently identified by
investigators, parliamentary and other inquiries, and by the experts of the
Court, unequivocally as flights whose sole purpose had been extraordinary
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rendition. If any doubt remained about whether these had been rendition
flights, it had been dispelled in the above-mentioned civil litigation between
sub-contractors in US courts where the flight operators had themselves
stated, in their pleadings, in clear and explicit terms that this contract had
been for rendition flights carried out for the US Government.
457. The dates and routes of these rendition flights and the periods of
operation of Detention Site Violet corresponded with the conclusive
evidence of the applicant’s location prior to and after Lithuania. As the
Court noted in Husayn (Abu Zubaydah) v. Poland, the applicant, after being
captured in Pakistan, had been transferred to secret CIA detention in
Thailand, from there to Poland, and then on to a secret CIA site in
Guantánamo Bay. Expert testimony had confirmed earlier reports that in
2004 he had been moved out of Guantánamo Bay – in anticipation of the
US Supreme Court ruling granting access to lawyers and habeas corpus
review – and he had been transferred to Morocco. As the experts had
explained, the Moroccan site had closed in February 2005, prompting the
opening of the next site in the cycle, Lithuania, precisely when rendition
flights had flown the route from Morocco to Lithuania. In March 2006, the
Lithuanian site itself had closed, prompting the transfer of the applicant, like
all of the remaining CIA detainees, to Afghanistan. It was from Afghanistan
that he had ultimately been transferred back to Guantánamo Bay in
September 2006.
458. Referring to the Government’s explanations as to the “special
cargo” and the purposes served by Project No. 2 given at the public hearing,
the applicant said these facts were entirely consistent with his statements
and did not really provide any information that would counter his case. In
particular, the transportation of the “cargo” was fully consistent with the
expert testimony given by Mr J.G.S. in Husayn (Abu Zubaydah), stating that
the high-value detainees had been treated as human cargo and that when
they had been brought into a country they had not been registered – even if
the passengers on the plane had been registered. Likewise, the
Government’s claim that Project No. 2 had been for a special intelligence
purpose was entirely consistent with the purpose of Detention Site Violet
and the applicant’s submissions in that respect.
459. In conclusion, the applicant contended that multiple strands of
corroborating evidence considered together, supportive of the first 2009
media accounts citing CIA insiders, led to the irresistible conclusion that, as
confirmed by the experts, Lithuania had hosted Detention Site Violet. It had
been set up by the Lithuanian authorities and had been operated with their
assistance by the CIA and the applicant had been detained at that site
between 17 or 18 February 2005 and 25 March 2006.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
215
(d) As regards the Lithuanian authorities’ agreement to the running of a
secret detention facility by the CIA on Lithuanian territory and their
complicity in the execution of the HVD Programme
460. The applicant maintained that multiple sources, including the 2014
US Senate Committee Report, the CNSD Findings and press reports,
mentioned high-level members of the Government and intelligence agencies
as having approved the establishment of the CIA sites. The 2014 US Senate
Committee Report made it clear that millions of dollars had been covertly
transferred to show appreciation for the country’s support for the HVD
Programme.
461. Furthermore, the applicant emphasised, for State responsibility to
be engaged under the Convention it was not necessary for the highest level
official of a State to have known and approved the setting up of the CIA
secret “black site” in the country. It was sufficient for the relevant officials
within the State to have approved and to have been responsible. In the
applicant’s view, there was compelling evidence that the Lithuanian State
had actively undertaken to facilitate and make possible his rendition to, and
secret detention in, Lithuania.
(e) As regards Lithuania’s knowledge of the CIA HVD Programme at the
material time
462. The applicant reiterated that there had been no plausible room for
doubt as to Lithuania’s knowledge of the nature of the secret detention
system in 2005 and 2006. This had been clear from the vast publicly
available information, including extensive media coverage which had
reverberated around the globe, including in Lithuania, detailing the secret
detention programme, specifically identifying Eastern European “black
sites”, the nature of the enhanced interrogation techniques, and identifying
Abu Zubaydah by name as one the missing “ghost prisoners”. The Marty
Inquiry was already underway when the applicant had been detained in
Lithuania. To suggest innocent ignorance on the part of the authorities as to
what might have been going on in the secret site that they set up for the CIA
by 2005 simply beggared belief.
463. In addition, evidence showed that high-level officials had had
specific and direct knowledge. For example, the former President had
publicly admitted having been asked by the head of intelligence whether he
would be willing to bring accused terrorists into the country unofficially.
The head of intelligence in response had noted that he had enquired as to the
President’s position precisely on the basis that he had known what had been
going on in the world.
In another example, also from 2005, while the applicant was still
detained in Lithuania, the Lithuanian Government attended a NATO-EU
meeting with Ms Condoleezza Rice; Mr Fava’s testimony set out in Husayn
(Abu Zubaydah) made it clear that all member States had known about the
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
enhanced interrogation techniques. That had been clear from the records of
the meeting.
464. As experts had testified, while not everyone would have known,
just as in all other host countries, some certainly had known and had
approved. It was beyond reasonable doubt that by 2005 Lithuania had
known of the real risk of violations on its territory and evidence
demonstrated that the authorities had taken no measures to prevent, to
monitor or even to enquire. The parliamentary inquiry concluded that it had
been evident that the SSD had not sought to control the CIA’s activities in
the country and the premises placed at their disposal. It had not monitored
or recorded cargoes brought in and out of the country, and it had not
controlled the CIA’s arrival and departure. This lack of oversight was
confirmed by the prosecution file. The Lithuanian authorities had not only
failed to exercise due diligence to prevent violations but they had actively
intervened to support and enable them. As the evidence showed, again
including evidence from the prosecution file, the Lithuanian officials had
agreed to, purchased and helped to equip the CIA’s secret sites. The
Lithuanian officials had provided vital logistics and support for the site,
keeping local inquiries at bay. The Lithuanian authorities had intervened to
ensure that normal oversight of CIA flights had been lifted by the use of
classified letters that had ensured that neither planes, nor passengers, nor
cargo had been monitored or inspected. This had been true specifically of
the rendition flights identified by the experts as bringing the CIA detainees
into the country and taking them out again.
B. Joint submissions by Amnesty International (AI) and the
International Commission of Jurists (ICJ) on public knowledge of
US practices in respect of captured terrorist suspects
465. Referring to the knowledge of the US authorities’ practices in
respect of suspected terrorists attributable to any Contracting State to the
Convention at the material time, AI/ICJ pointed to, among other things, the
following facts that had been a matter of public knowledge.
466. They stressed at the outset that already on 16 September 2001, in
an interview, the US Vice President Richard Cheney had said that, in
response to the attacks of 11 September, the US intelligence agencies would
operate on “the dark side”, and had agreed that US restrictions on working
with “those who [had] violated human rights” would need to be lifted.
AI warned in November 2001 that the USA might exploit its existing
rendition policy in the context of what it was calling the “war on terror” to
avoid human rights protections. From early 2002 it became clear that
non-US nationals outside the USA suspected of involvement in international
terrorism were at a real risk of secret transfer and arbitrary detention by US
forces.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
217
467. In that regard, AI/ICJ submitted that from January 2002 to 2003 the
USA had transferred more than 600 foreign nationals to the US Naval Base
in Guantánamo Bay, Cuba, with reports from the outset of ill-treatment
during transfers, holding them without charge or trial or access to the courts,
lawyers or relatives. By July 2005, there were more than 500 men held
there.
Cases of arbitrary detention and secret transfer continued to emerge
during 2002. In April 2002, alongside the case of Abu Zubaydah, arrested in
Pakistan and whose whereabouts after transfer to US custody remained
unknown AI reported that “the US authorities had transferred dozens of
people to countries where they [might] be subjected to interrogation tactics -
including torture [...]. In some cases, it [was] alleged that US intelligence
agents [had] remained closely involved in the interrogation”.
Also, in December 2002, the Washington Post reported on a secret CIA
facility at Bagram, Afghanistan, and the CIA’s use of “stress and duress”
techniques, including sleep deprivation, stress positions and hooding, and
the use of renditions by the CIA. Thus, as early as the end of 2002, any
Contracting Party was or should have been aware that there was substantial
credible information in the public domain that the USA was engaging in
practices of enforced disappearance, arbitrary detention, secret detainee
transfers, and torture or other ill-treatment.
468. In the years 2003 and 2004 information continued to emerge. In
June 2003, for example, AI reported that the CIA had been involved in the
arrest in Malawi of five men and their rendition out of that country to an
undisclosed location. In August 2003, AI reported that Indonesian national
Riduan Isamuddin, also known as Hambali, was being interrogated in US
custody in incommunicado detention at an undisclosed location after his
arrest in Thailand.
In January 2004, the ICRC issued a press release stating that “[b]eyond
Bagram and Guantánamo Bay, the ICRC [was] increasingly concerned
about the fate of an unknown number of people captured as part of the
so-called global war on terror and held in undisclosed locations”.
Furthermore, a February 2004 confidential report of the ICRC on Coalition
abuses in Iraq, leaked in 2004 and published in the media at that time, found
that detainees labelled by the USA as “high-value” were at particular risk of
torture and other ill-treatment and that “high value detainees” had been held
for months in a facility at Baghdad International Airport in conditions that
violated international law.
In May 2004, AI publicly denounced as torture the interrogation
technique known as “waterboarding” reportedly used against Khalid Sheikh
Mohammed, a “high-value detainee” who had by then been held in secret
US detention for more than a year following his arrest in Pakistan in
March 2003.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
469. In June 2004, the Washington Post published a leaked August 2002
memorandum written in the US Department of Justice’s Office of Legal
Counsel. The memo advised, inter alia, that presidential powers or the
doctrines of necessity or self-defence could override the criminal liability
for torture under US law, and that a “significant range of acts” would not be
punishable as they did not amount to torture. Another government
memorandum leaked in 2004 asserted that not applying the Geneva
Conventions to “captured terrorists and their sponsors” would reduce the
threat of domestic prosecution of US interrogators for war crimes.
In June 2004, a December 2002 memorandum signed by the US
Secretary
of
Defense
was
declassified.
It
had
authorized
“counter-resistance” techniques for use at Guantánamo, including stress
positions, sleep deprivation, sensory deprivation, stripping, hooding,
exploitation of phobias, and prolonged isolation. A 2003 Pentagon Working
Group report on “detainee interrogations in the global war on terrorism”,
declassified and published in June 2004 after an earlier draft of it was
leaked,
recommended
the
use
of
various
techniques,
including
environmental manipulation, threat of rendition, isolation, sleep deprivation,
removal of clothing, exploitation of phobias, prolonged standing, and
hooding.
470. In October 2004, AI published a 200-page report on US human
rights violations in the “war on terror”, including case details of secret
transfers of detainees, the alleged existence of secret US detention facilities,
and torture and other ill-treatment. The numerous rendition cases listed
included detailed allegations made by Khaled el-Masri.
In addition, in its annual reports covering each of the years from 2002 to
2005, AI made multiple references to human rights violations in the context
of US counterterrorism operations, not only in the entries on the USA, but
also in a number of other country entries. Paper copies of these reports were
widely distributed, including to media and governments. For example,
copies of the reports were mailed at the time of their publication directly to
the President, the Prime Minister, the Minister of the Interior and the
Minister of Justice in Vilnius, Lithuania.
471. In the AI/ICJ’s submission, by early 2005 it was beyond reasonable
doubt that the USA was engaging in human rights violations against
detainees, including holding individuals in secret custody at undisclosed
locations, and that detainees labelled “high-value” were at particular risk as
the USA pursued intelligence on al-Qaeda and associated groups.
Consequently, by 2005, any Contracting Party agreeing to host a CIA
“black site” on its territory would or should have known that such a site
would be part of a programme that involved unlawful transfer, enforced
disappearance, and torture or other ill- treatment. Further, any Contracting
Party would or should have known that any US assurances that a detainee
previously subjected to the US programme would be treated in a manner
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
219
consistent with international law, in the case of further transfer, lacked
credibility. Any State would or should have known that even if not
transferred to further undisclosed detention, the alternative for a
“high-value” detainee would be indefinite arbitrary detention without charge
or committal for trial by military commission with the power to hand down
death sentences.
C. HFHR submissions
472. The HFHR focused on their experience regarding Poland’s
involvement in the CIA extraordinary rendition programme. They produced
a number of documents, including flight data, concerning eleven landings of
the CIA-rendition aircraft in Poland, ten of which had occurred at Szymany
military airfield between 5 December 2002 (the date of the applicant’s
rendition to Poland) and 22 September 2003 (the date of the applicant’s
rendition from Poland) and one landing of a plane from Kabul in Warsaw en
route to Keflavik that occurred on 28 July 2005.
D. The parties’ positions on the standard and burden of proof
473. The parties expressed opposing views on the standard and burden
of proof to be applied in the present case.
1. The Government
474. The Government reiterated that there was no evidence that the facts
complained of had taken place in Lithuania. In their view, the applicant’s
allegations could not be considered sufficiently convincing or established
beyond reasonable doubt, as required by the Court’s case-law.
In that regard, the Government referred to the standard of proof applied
by the Court in El-Masri (cited above), emphasising that the present case
was substantially different in several aspects. In the first place, in the
El-Masri case the applicant himself had lodged the case and presented his
statements; his account had been supported by a large amount of indirect
evidence obtained during the international inquiries and the investigation by
the German authorities. As the Court held, Mr El-Masri’s case had been “a
case of documented rendition”. Secondly, there had been other relevant
elements corroborating the applicant’s story. Thirdly, the circumstances
described by the applicant had been verified and confirmed by other
international investigations concerning the applicant, to mention only the
Marty and Fava Inquiries. Lastly, the Court had before it a written statement
made by one of the State’s top officials confirming the facts established in
the course of the investigations and the applicant’s consistent and coherent
description of events. All this material taken together satisfied the Court that
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
there had been prima facie evidence in favour of the applicant’s version of
events, and, consequently, it found the applicant’s allegations sufficiently
convincing and established beyond reasonable doubt.
In contrast, Mr Abu Zubaydah had failed to produce such evidence and
to make a credible claim either before the domestic authorities or before the
Court. In view of the foregoing, the Government were confident that the
burden of proof should not be shifted to them.
475. The Government further stressed that the applicant’s allegations
concerning rendition to and from Lithuania, and his secret detention and
ill-treatment in CIA secret facilities in Lithuania had been rejected in their
entirety as unfounded following the pre-trial investigation carried out by the
Prosecutor General’s Office.
Those proceedings followed the Seimas inquiry. While it was true that
the Seimas had come to conclusions that had left some doubt as to whether
any CIA prisoners had been transported to and from the country and
whether a CIA secret prison had operated on the premises of Project No. 1
and Project No. 2, all such doubts had been dispelled in the criminal
investigation.
In that context, the Government also drew the Court’s attention to the
limited competence of the Seimas and the nature of its inquiry as defined in
the Constitutional Court’s ruling of 13 May 2004, holding that “the Seimas
[was] neither an institution of pre-trial investigation under the Constitution,
nor the prosecutor’s office, nor the court” and that “the conclusions of the
Seimas ... investigation ... may not be construed as legal qualification of the
actions that [it had] investigated ... and of other circumstances ... elucidated
by it”. Consequently, the Seimas findings had not been binding and
remained subject to the verification in the prosecutor’s investigation.
476. The Government attached particular importance to the prosecutor’s
conclusion that in the course of the pre-trial investigation no evidence
concerning unlawful rendition by the CIA of any persons, including the
applicant, to or from Lithuania had been obtained. That decision had been
based on a wide range of evidence, including classified sources,
conclusively refuting the applicant’s version of the events. Those findings,
made as they were on a solid evidential basis could not, therefore, be
undermined by the mere flight data or other information available in the
public domain.
477. In conclusion, the Government asked the Court to hold that there
was no prima facie evidence in support of the applicant’s version of events
and that, accordingly, the burden of proof could not be shifted to them.
2. The applicant
478. The applicant submitted that in his case against Poland, the Court
had acknowledged the undeniable evidential challenges that arose in a case
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
221
of this nature, and how the facts of the case, and the nature of the
allegations, conditioned the Court’s approach to evidence and proof.
As regards the “beyond reasonable doubt” standard, to which the
Government referred, the Court had long been clear that this did not have
the meaning commonly associated with that term in criminal law and
domestic systems. Proof might flow from the existence of sufficiently
strong, clear and concordant inferences of presumptions of fact. The Court
must adopt an approach consistent with its purpose as a Human Rights
Court. Where the events in issue lay wholly, or in large part, within the
exclusive knowledge of the domestic authorities, strong presumptions of
fact might arise. When prima facie evidence was presented, the burden of
proof shifted to the authorities to provide a satisfactory and convincing
explanation.
479. In the applicant’s view, the evidence in his case more than met the
relevant standard of prima facie evidence and created, at a minimum, strong
and concordant inferences of fact as to his secret detention on Lithuanian
soil. The Government had failed to provide any satisfactory explanation in
the face of overwhelming evidence that they had established a “black site”
on their territory. Instead, they had engaged in a policy of denial and
obfuscation, drawing categorical conclusions that there could not possibly
have been detainees on Lithuanian soil. These conclusions were plainly at
odds with the evidence before the Court. As the Court in the Polish case had
noted, given the nature of the case, the fact that there was no document
identifying Abu Zubaydah by name as a detainee on a specific flight or in a
specific secret prison site was not surprising and could not determine the
outcome in this case. As the evidence plainly showed and as all the three
experts had concluded, Abu Zubaydah had been transferred to the
Lithuanian “black site” on the relevant dates.
E. The Court’s assessment of the facts and evidence
1. Applicable principles deriving from the Court’s case-law
480. The Court is sensitive to the subsidiary nature of its role and has
consistently recognised that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered unavoidable by the
circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02,
§ 113, ECHR 2006-XIII (extracts); Aslakhanova and Others v. Russia,
nos. 2944/06 and 4 others, § 96, 18 December 2012; and El-Masri, cited
above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 393).
481. In assessing evidence, the Court has adopted the standard of proof
“beyond reasonable doubt”. However, it has never been its purpose to
borrow the approach of the national legal systems which use that standard.
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Its role is not to rule on criminal guilt or civil liability but on the
responsibility of Contracting States under the Convention. The specificity of
its task under Article 19 of the Convention – to ensure the observance by
the Contracting States of their engagement to secure the fundamental rights
enshrined in the Convention – conditions its approach to the issues of
evidence and proof. In the proceedings before the Court, there are no
procedural barriers to the admissibility of evidence or pre-determined
formulae for its assessment. It adopts the conclusions that are, in its view,
supported by the free evaluation of all evidence, including such inferences
as may flow from the facts and the parties’ submissions.
According to the Court’s established case-law, proof may follow from
the coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this connection, the
distribution of the burden of proof, are intrinsically linked to the specificity
of the facts, the nature of the allegation made and the Convention right at
stake. The Court is also attentive to the seriousness that attaches to a ruling
that a Contracting State has violated fundamental rights (see, among other
examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A
no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 147, ECHR 2005-VII; Creangă v. Romania [GC], no. 29226/03, § 88,
23 February 2012; and El-Masri, cited above, § 151; Georgia v. Russia (I)
[GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland,
cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394;
and Nasr and Ghali v. Italy, no. 44883/09, § 119, 23 February 2016).
482. While it is for the applicant to make a prima facie case and adduce
appropriate evidence, if the respondent Government in their response to his
allegations fail to disclose crucial documents to enable the Court to establish
the facts or otherwise provide a satisfactory and convincing explanation of
how the events in question occurred, strong inferences can be drawn (see
Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184,
ECHR 2009, with further references; Kadirova and Others v. Russia,
no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above,
§ 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 395).
483. Furthermore, the Convention proceedings do not in all cases lend
themselves to a strict application of the principle affirmanti incumbit
probatio. According to the Court’s case-law under Articles 2 and 3 of the
Convention, where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, for instance as in the case of persons
under their control in custody, strong presumptions of fact will arise in
respect of injuries and death occurring during that detention. The burden of
proof in such a case may be regarded as resting on the authorities to provide
a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC],
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
223
no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri,
cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu
Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above,
§ 220).
In the absence of such explanation the Court can draw inferences which
may be unfavourable for the respondent Government (see El-Masri, cited
above, § 152).
2. Preliminary considerations concerning the assessment of the facts
and evidence in the present case
484. The Court has already noted that it is not in a position to receive a
direct account of the events complained of from the applicant (see
paragraphs 15-16 above; also compare and contrast with other previous
cases involving complaints about torture, ill-treatment in custody or
unlawful detention, for example, El-Masri, cited above, §§ 16-36
and 156-167; Selmouni v. France [GC], no. 25803/94, §§ 13-24,
ECHR 1999-V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18,
ECHR 2006-IX; and Ilaşcu and Others, cited above, §§ 188-211).
485. The regime applied to High Value Detainees such as the applicant
is described in detail in the CIA declassified documents, the 2014 US
Senate Committee Report and also, on the basis, inter alia, of the
applicant’s own account, in the 2007 ICRC Report. That regime included
transfers of detainees to multiple locations and involved holding them in
continuous solitary confinement and incommunicado detention throughout
the entire period of their undisclosed detention. The transfers to unknown
locations and unpredictable conditions of detention were specifically
designed to deepen their sense of disorientation and isolation. The detainees
were usually unaware of their exact location (see Al Nashiri v. Poland, cited
above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 397-398; and paragraphs 47-58, 85 and 299 above).
486. As held in Husayn (Abu Zubaydah) (cited above, § 397) and as
emerges from the material cited above (see paragraphs 90-164 above), since
27 March 2002 the applicant has not had contact with the outside world,
save the ICRC team in October and December 2006, the Combatant Status
Review Tribunal’s members and his US counsel. It has also been submitted
that the applicant’s communications with the outside world are subject to
unprecedented restrictions and that his communications with his US counsel
and his account of experiences in CIA custody are presumptively classified.
In fact, for the last sixteen years, he has been subjected to a practical ban on
communication with others, apart from mail contact with his family which
was allowed at some point after his transfer to Guantánamo (see
paragraphs 161-163 and 407 above).
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487. The above difficulties in gathering and producing evidence in the
present case caused by the restrictions on the applicant’s contact with the
outside world and by the extreme secrecy surrounding the US rendition
operations have inevitably had an impact on his ability to plead his case
before the Court. Indeed, in his application and further written pleadings the
events complained of were to a considerable extent reconstructed from
threads of information gleaned from numerous public sources.
In consequence, the Court’s establishment of the facts of the case is to a
great extent based on circumstantial evidence, including a large amount of
evidence obtained through the international inquiries, considerably redacted
documents released by the CIA, the declassified 2014 US Senate Committee
Report, other public sources and the testimony of the experts heard by the
Court (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 400; and
Al Nashiri v. Poland, cited above, § 400).
488. Furthermore, it is to be noted that while the Government firmly
denied the applicant’s allegations in so far as they concerned Lithuania, they
refrained from making any comments on the facts relating to the
circumstances preceding his alleged rendition to Lithuania on 17 or
18 February 2005 or following his alleged transfer from the country on
25 March 2006 (see paragraphs 423-446 above).
However, the facts complained of in the present case are part of a chain
of events lasting from 27 March 2002 to 5 September 2006 and concerning
various countries. The examination of the case necessarily involves the
establishment of links between the dates and periods relevant to the
applicant’s detention and a sequence of alleged rendition flights to those
countries. Accordingly, the Court’s establishment of the facts and
assessment of evidence cannot be limited to the events that allegedly took
place in Lithuania but must, in so far as is necessary and relevant for the
findings in the present case, take into account the circumstances occurring
before and after his alleged detention in Lithuania (see Al Nashiri v. Poland,
cited above, §§ 401-417); and Husayn (Abu Zubaydah) v Poland, cited
above, §§ 401-419).
3. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning his transfers and
secret detention by the CIA before his rendition to Lithuania
(27 March 2002 to 17 or 18 February 2005)
(a) Period from 27 March 2002 to 22 September 2003
489. The Court has already established beyond reasonable doubt the
facts concerning the applicant’s capture, rendition and secret detention until
22 September 2003, the date of his rendition on plane N313P from Poland
to another CIA secret detention facility (see Husayn (Abu Zubaydah)
v. Poland, cited above, §§ 401-404 and 406-419). The relevant passages
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
225
from Husayn (Abu Zubaydah) containing the Court’s findings of fact are
cited above (see paragraphs 91 and 97 above). Some additional elements,
which are all fully consistent with the Court’s establishment of the facts in
that case, can also be found in the 2014 US Senate Committee Report (see
paragraphs 92-96 and 98 above).
(b) Whether the applicant’s allegations concerning his secret detention and
transfers in CIA custody from 22 September 2003 (transfer out of Poland)
to 17 or 18 February 2005 (transfer out of Morocco) were proved before
the Court
490. It is alleged that before being rendered by the CIA to Lithuania the
applicant had been detained in Guantánamo from 23 September 2003 to
Spring 2004 and, subsequently in Rabat, Morocco until 17 or 18 February
2005 (see paragraph 99 above).
491. In Husayn (Abu Zubaydah) Mr J.G.S. testified that on
22 September 2003 the plane N313P had taken the applicant from Szymany,
Poland via Bucharest and Rabat to Guantánamo. The plane’s destinations to
Romania and Morocco had been disguised by the so-called “dummy” flight
planning, showing, among other things Constanţa, not Bucharest as the
arrival airport in Romania (see Husayn (Abu Zubaydah) v. Poland, cited
above, §§ 109 and 312; see also paragraphs 103-104 above).
In the present case, Mr Black, having analysed the available evidence,
testified that “Abu Zubaydah must have ... been taken to Guantánamo on
that flight” (see paragraph 108 above).
492. The N313P rendition circuit of 20-24 September 2003 was
analysed in detail in Husayn (Abu Zubaydah), where, as stated above, the
Court held that on 22 September 2003 Mr Abu Zubaydah had been
transferred by the CIA from Poland on board that plane to another CIA
secret detention facility elsewhere. It also held that this flight had marked
the end of CIA-associated aircraft landings in Poland and the closure of the
CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu
Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data
from multiple sources shows that the plane left Washington D.C. on
20 September 2003 and undertook a four-day flight circuit during which it
landed in six countries. It arrived in Szymany from Kabul. It flew from
Szymany to Bucharest, then to Rabat and from Rabat to Guantánamo on the
night of 23 September 2003, landing there in the morning of 24 September
2003 (see paragraphs 103-104 and 108 above).
493. The 2014 US Senate Committee Report confirms that “beginning in
September 2003” the CIA held its detainees at CIA facilities in Guantánamo
and that by a – redacted but clearly two-digit – date in April 2004 “all five
CIA detainees were transferred from Guantánamo to other CIA detention
facilities” pending the US Supreme Court’s ruling in Rasul v. Bush which,
as the US authorities expected, “might grant habeas corpus rights to the five
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CIA detainees”. The transfer was preceded by consultations among the US
authorities in February 2004. It was recommended by the US Department of
Justice (see paragraphs 61 and 110 above).
494. At the fact-finding hearing in the present case, Mr J.G.S. explained
that the applicant had been transferred from Guantánamo on board the
rendition plane N85VM on 27 March 2004. The flight was first part of the
CIA double rendition circuit performed by that plane between 27 March and
13 April 2004. On the first circuit some prisoners, including the applicant,
were transferred to Rabat directly (see paragraph 107 above). Mr Black
confirmed that everyone who had been taken to Guantánamo had had to be
moved out in March or April 2004 (see paragraph 108). The experts
identified the country to which the applicant had been transferred from
Guantánamo as Morocco on the basis of the correlation of the flight data
and unredacted information in the 2014 US Senate Committee Report (see
paragraphs 105-108 above).
495. Furthermore, both experts confirmed that the CIA, due to various
disagreements with the Moroccan authorities, had been forced to take all its
prisoners out of Morocco in early 2005. In that regard, the 2014 US Senate
Committee Report relates “tensions” with a country whose name is
redacted. Those tensions arose in connection with the “deterioration of
intelligence cooperation” and the treatment of their prisoners by the local
authorities, resulting in “cries of pain” being heard by CIA detainees kept in
the same detention facility. It states that the CIA detainees were transferred
out of the country concerned in 2005; the month was redacted but seems to
have comprised eight characters (see paragraphs 105-110 above).
Both experts indicated February 2005 as the month in question.
Mr J.G.S., referring to the Moroccan detention facility, testified that “it [had
been] in this site that Mr Zubaydah found himself in early 2005, specifically
February 2005, when the aforementioned clear-out of Morocco [had taken]
place” (see paragraph 105 above). Mr Black stated that “after a certain time
in Morocco, the CIA [had] had too many disagreements with the Moroccan
Intelligence Agencies with regard to treatment of prisoners in Morocco. ...
And so everyone who [had been] in Morocco [had been] moved out at the
latest in February 2005” (see paragraph 108).
496. In the light of the material in its possession – which has not been as
such contested by the Government (see paragraph 488 above) – the Court
finds no counter evidence capable of casting doubt on the accuracy of the
experts’ conclusions regarding the above sequence of events, the places of
the applicant’s secret detention and the dates of his transfers during the
relevant period.
497. Accordingly, the Court finds it established beyond reasonable
doubt that:
(1) on 22 September 2003 on board N313P the applicant was transferred
by the CIA from Szymany, Poland to Guantánamo, Cuba;
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
227
(2) from 24 September 2003 to 27 March 2004 the applicant was
detained in Guantánamo;
(3) on 27 March 2004 on board N85VM the applicant was transferred by
the CIA from Guantánamo to Rabat, Morocco;
(4) from 27 March 2004 to an unspecified date in the month (redacted in
the 2014 US Senate Committee Report), identified by the experts as
February 2005, the applicant was detained in Morocco at a facility used by
the CIA; and
(5) on an unspecified date in February 2005 he was transferred by the
CIA from Morocco to another detention facility elsewhere.
4. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning his rendition by
the CIA to Lithuania, secret detention in Lithuania and transfer by
the CIA out of Lithuania (17 or 18 February 2005 to 25 March
2006)
(a) Whether a CIA secret detention facility existed in Lithuania at the time
alleged by the applicant (17 or 18 February 2005 to 25 March 2006)
498. It is alleged that a CIA secret detention facility, codenamed
“Detention Site Violet” operated in Lithuania from 17 or 18 February 2005,
the dates on which either or both CIA rendition planes N724CL and
N787WH brought CIA detainees to Lithuania, to 25 March 2006, when it
was closed following the detainees’ transfer out of Lithuania on board the
rendition plane N733MA (see paragraphs 111-117 and 449-459 above). The
Government denied that a CIA detention facility had ever existed in
Lithuania (see paragraphs 423-446 above).
499. The Court notes at the outset that although the Government have
contested the applicant’s version of events on all accounts, they have not
disputed the following facts, which were also established in the Seimas
inquiry and confirmed in the course of the pre-trial investigation conducted
in 2010-2011 (see paragraphs 174, 199, 307-349, and 367-370 above):
(a) In 2002-2005 the CIA-related aircraft repeatedly crossed Lithuania’s
airspace; according to the CNSD Findings, on at least twenty-nine
occasions.
(b) In the period from 17 February 2005 to 25 March 2006 four CIA-
related aircraft landed in Lithuania:
– planes N724CL and N787WH landed at Vilnius International Airport
on, respectively, 17 February 2005 and 6 October 2005;
– planes N787WH and N733MA landed at Palanga International Airport
on, respectively, 18 February 2005 and 25 March 2006.
(d) On three occasions the SSD officers received the CIA aircraft and
“escorted what was brought by them” with the knowledge of the heads of
the SSD:
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– on 18 February 2005 N787WH, which landed at Palanga airport with
five US passengers on board, without any thorough customs inspection of
the plane being carried out; according to the CNSD Findings, “no cargo was
unloaded from it or onto it”;
– on 6 October 2005 N787WH, which landed at Vilnius airport, where a
certain R.R., the SBGS officer, was prevented from inspecting the aircraft
and no customs inspection of the plane was carried out; and
– on 25 March 2006 N733MA, which landed at Palanga airport, but the
SBGS documents contained no records of the landing and inspection of the
plane, and no customs inspection was carried out.
(e) In connection with the landing of N787WH in Vilnius on 6 October
2005 and of N733MA in Palanga on 25 March 2006 the SSD issued
classified letters to the SBGS, but the letter regarding the landing on
6 October 2005 was delivered ex post facto, and before that event the SSD
had never issued such letters.
(f) The SSD high-ranking officers provided the US officers with
unrestricted access to the aircraft at least on two occasions, including on
6 October 2005.
(g) In 2002-2006 the SSD and the CIA were in “partnership
cooperation”, which involved the “equipment of certain tailored facilities”,
i.e. Project No. 1 and Project No. 2.
(h) The facilities of Project No. 1 were installed in 2002.
(i) The SSD started the implementation of Project No. 2 in cooperation
with the CIA at the beginning of 2004; this involved assisting the CIA in the
acquisition of the land and building in Antaviliai and carrying out
construction work in order to equip the facility; the work was carried out by
contractors brought by the CIA to Lithuania; the materials and equipment
for the facility were brought to Lithuania by the CIA in containers.
(j) Project No. 1 and Project No. 2 were fully financed by the CIA.
(k) Witnesses A and B2, politicians questioned in the criminal
investigation, were addressed in connection with “the temporary possibility
of holding persons suspected of terrorism” and “as regards the
transportation and holding [of] people in Lithuania”.
500. The Court further notes that, according to the material in the case
file, the first public disclosure of Lithuania’s possible participation in the
CIA secret detention scheme appeared on 20 August 2009 in the ABC News
report. The report was followed by a more detailed publication of
18 November 2009. The reports mentioned “CIA officials directly involved
in or briefed on the highly classified [HVD] programme”, “a former US
intelligence official”, “one of the former CIA officers involved in the secret
prison program”, “Lithuanian officials” and “a current Lithuanian
government official” as their sources.
The August 2009 ABC News report stated that “Lithuanian officials [had]
provided the CIA with a building on the outskirts of Vilnius ... where as
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
229
many as eight suspects [had been] held for more than a year until late 2005
when they [had been] moved because of public disclosures”. The reporters
said that they had viewed flight logs – shown to them by “one of the former
CIA officers involved in the secret prison program”, confirming that CIA
planes made “repeated flights into Lithuania during that period” and that the
purpose of the flights had been “to move terrorist suspects”. The officer told
the reporters that the CIA had “arranged for false plans to be submitted to
European aviation authorities”. It was also reported that “the prison in
Lithuania [had been] one of eight facilities the CIA set up after 9/11 to
detain and interrogate al Qaeda operatives captured around the world” (in
this connection, see also paragraph 166 above).
In November 2009 ABC News reported that a current Lithuanian
government official and a former US intelligence official had told them that
the CIA had “built one of its secret European prisons inside an exclusive
riding academy outside Vilnius”. ABC News stated that “the CIA [had built
a thick concrete wall inside the riding area. Behind the wall, it [had] built
what one Lithuanian source [had] called a ‘building within a building’. On a
series of thick concrete pads, it [had] installed what a source called
‘prefabricated pods’ to house prisoners, each separated from another by five
or six feet. Each pod included a shower, a bed and a toilet. Separate cells
were constructed for interrogations. ... Intelligence officers working at the
prison [had been] housed next door in the converted stable ... Electrical
power for both structures [had been] provided by a 2003 Caterpillar
autonomous generator. All the electrical outlets in the renovated structure
[had been] 110 volts, meaning that they [had been] designed for American
appliances” (see paragraphs 258-259 above).
501. The Government have contested the evidential value of the above
publications and, in general terms, expressed reservations as to the
evidential value of media and other reports in the public domain (see
paragraphs 423-424 above).
However, at the material time the Lithuanian authorities apparently
considered the August 2009 ABC News disclosure sufficiently credible,
given that the report prompted the joint meeting of the CNSD and
Committee on Foreign Affairs on 9 September 2009 and the further
parliamentary inquiry, which was opened on 5 November 2009. In the
course of the inquiry the CNSD interviewed fifty-five persons, including the
highest authorities of the State, and obtained various evidence, including
classified information (see paragraphs 167-176 above).
The CNSD, made the following findings:
(a) In 2002-2005 the aircraft that had been linked in official
investigations to the transportation of CIA detainees had crossed Lithuania’s
airspace on repeated occasions.
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(b) It had not been established whether CIA detainees had been
transported through Lithuania; however, conditions for such transportation
had existed.
(c) The SSD had received a request from the CIA to equip facilities
suitable for holding detainees.
(d) The SSD, in Project No. 1, had created conditions for holding
detainees in Lithuania; ”facilities suitable for holding detainees [had been]
equipped, taking account of the requests and conditions set out by the
partners”; however, according to evidence in the CNSD’s possession the
premises had not been used for that purpose.
(e) While persons who had given evidence to the CNSD had denied that
there existed any preconditions for holding and interrogating detainees at
Project No. 2, the layout of the building, its enclosed nature and protection
of the perimeter, as well as the fragmented presence of the SSD staff at the
premises allowed the CIA officers to carry out activities without the SSD’s
control and to use the infrastructure at their discretion.
The above Findings were endorsed by the Seimas in its Resolution of
19 January 2010 (see paragraph 174 above).
502. The Government submitted that the CNSD Findings had been
subsequently verified in the pre-trial investigation conducted in 2010-2011.
According to the Government, the investigation, based on the testimony of
witnesses who had been directly involved in the implementation of Project
No. 1 and Project No. 2, and in the landing and departure procedures for
CIA flights, had conclusively established that there had been no CIA secret
detention centre in Lithuania, that the facilities of Project No. 1 and Project
No. 2 had not been, and could not have been, used for holding detainees and
that there had been no evidence of CIA detainees ever being held in the
country. The sole purpose of the CIA planes landing was, in the
Government’s words, the delivery of a “special cargo”, described as a
“connection” or “communication” equipment providing the SSD and the
CIA “with technical services in order to implement their joint project”. The
Government also attached importance to the fact that Lithuania had not been
the object of any international inquiries conducted into the European
countries’ collusion in the CIA HVD Programme (see paragraphs 426-446
above).
503. As regards the latter argument, the Court observes that it is true
that, on account of the fact that the allegations of the CIA secret prison
being run in Lithuania emerged only in August 2009 (see paragraphs 258
and 500 above), Lithuania had not been included in any of the inquiries
carried out by the Council of Europe and the European Parliament in 2005-
2007 (see paragraphs 269-286 above). Nor were any international
investigations of a scale comparable to the Marty Inquiry and the Fava
Inquiry subsequently conducted into the allegations concerning Lithuania.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
231
504. However, the investigative work of the experts involved in the
2010 UN Joint Study encompassed Lithuania’s possible involvement in the
CIA scheme of secret prisons. According to the UN experts, research for the
study, including data strings relating to the country, appear to confirm that it
was integrated into the CIA extraordinary rendition programme in 2004 (see
paragraph 303 above).
505. The CPT delegation visit to Lithuania on 14-18 June 2010 and the
2011 CPT Report involved the issue of alleged CIA secret prisons. While
the central focus for the delegation was to try to assess the effectiveness of
the pre-trial investigation which was at that time pending, the CPT
considered it important to visit the “two tailored facilities” identified in the
CNSD Findings as Project No. 1 and Project No. 2. The 2011 CPT Report,
referring to Project No. 2, described the facilities as “far larger than” Project
No. 1” and consisting of “two buildings ... connected and divided into four
distinct sectors”. In one of the buildings, “the layout of premises resembled
a large metal container enclosed with a surrounding external structure”. The
CPT refrained from providing a more detailed description of the facilities
but concluded that even though when visited by the delegation the premises
did not contain anything that was “highly suggestive of a context of
detention”, both Project No. 1 and Project No. 2 could be adapted for
detention purposes “with relatively little effort” (see paragraphs 350-352
above).
506. It is also to be noted that since at least early 2012, the European
Parliament, through the LIBE Committee, has conducted an inquiry into
allegations concerning Lithuania’s complicity in the CIA extraordinary
rendition scheme. As part of the inquiry, the LIBE delegation visited
Lithuania and carried out an inspection of Project No. 2 which, in the words
of the LIBE Rapporteur, Ms Flautre, was described as a “kind of building
within the building, a double-shell structure” equipped with an “enormous
air-conditioning system and a water-pumping system, the purpose of which
[was] not evident” (see paragraph 289 above). That visit gave rise to
concerns subsequently expressed in the 2012 EP Resolution, which stated
that “the layout [of Project No. 2] and installations inside appear[ed] to be
compatible with the detention of prisoners” (see paragraph 290 above).
507. Furthermore, the conclusions of the pre-trial investigation relied on
by the Government and the Government’s explanation of the purpose of the
CIA planes landing seem to have been contradicted by other evidence in the
Court’s possession, including material available in the public domain and
the experts’ testimony.
To begin with, as regards the purpose of the CIA-linked planes landing in
Lithuania at the material time, the extensive flight data produced by the
applicant, including the data in the 2015 Reprieve Briefing, and expert
evidence show that in respect of three out of four planes that landed in and
departed from Vilnius and Palanga airports during the period from
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17 February 2005 to 25 March 2006 the CIA used its methodology of
“dummy” flight planning, that is to say, a deliberate disguise of their true
destinations by declaring in the flight plans the route that the planes did not,
nor even intended to, fly (see paragraphs 123-125 and 130-133 above).
According to expert evidence obtained by the Court in Al Nashiri v. Poland
and Husayn (Abu Zubaydah) v. Poland, as well as in the present case, the
methodology of disguising flight planning pertained primarily to those
renditions which dropped detainees off at the destination – in other words,
at the airport connected with the CIA secret detention facility (see
Al Nashiri v. Poland, cited above, §§ 316-318; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 310-312; see also paragraph 127 above).
(a) Significantly, the N787WH’s circuit executed on 15-19 February
2005 included two disguised – undeclared – destinations on the plane’s
route from Rabat to Palanga. The first disguised destination was Bucharest,
whereas the flight plan was filed for Constanţa; the second one was Palanga,
whereas the flight plan was filed for Gothenburg (see paragraph 123 above).
(b) The N787WH’s circuit on 1-7 October 2005 was disguised by both
the “dummy” flight planning and switching aircraft in the course of the
rendition operation, also called a “double-plane switch” – that is to say,
another CIA method of disguising its prisoner-transfers, which was
designed, according to expert J.G.S., to avoid the eventuality of the same
aircraft appearing at the site of two different places of secret detention (see
paragraph 129 above; see also Al Nashiri v. Romania, cited above, § 135).
The experts testified that the “double-plane switch” operation had been
executed on 5-6 October 2005 in Tirana by two planes – N308AB, which
arrived there from Bucharest after collecting detainees from the CIA “black
site” in Romania, and N787WH. The CIA detainees “switched” planes in
Tirana and they were transferred from N308AB onto N787WH for the
rendition flight. On its departure from Tirana, N787WH filed a false plan to
Tallinn in order to enable the flight to enter Lithuanian airspace, but its true
destination was Vilnius, where it landed on 6 October 2005 in the early
hours (see paragraphs 114, 130-131 and 140 above).
In relation to this flight it is also noteworthy that the flight data submitted
by the Lithuanian aviation authorities to the CNSD in the course of the
Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey
(see paragraph 174 above). Witnesses questioned in the pre-trial
investigation gave inconsistent indications as to where the plane arrived
from. For instance, Witness B3 spoke of an “unplanned aircraft from
Antalya” (see paragraph 315 above). Witness B4 (“person B”) said that it
had “arrived from Tallinn without passengers” and that it had “arrived in
Tallinn from Antalya” (see paragraph 316 above). The Administration of
Civil Aviation, for its part, informed the prosecutor that “they could [have]
confuse[d] the code of Antalya and Tirana due to their similarity” (see
paragraph 183 above).
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233
(c) According to the experts, a combination of “dummy” flight planning
and aircraft switching methodologies was likewise used in connection with
the N733MA flight on 25 March 2006 (see paragraphs 134 and 140 above).
The Palanga airport records indicated that on that date the plane had arrived
in Palanga from Porto and that it had left for Porto on the same day (see
paragraphs 125 and 174 above). However, as stated in the 2015 Reprieve
Briefing and confirmed by the experts at the fact-finding hearing, a false
plan was filed for Porto, whereas the plane flew to Cairo where it made
connection with N740EH, another CIA rendition plane. The 2015 Reprieve
Briefing also states that the documents relating to the planning of these two
trips showed complex attempts to disguise the fact that the purpose of the
trips was to provide a connection between Lithuania and Afghanistan (see
paragraph 125 above).
In the Court’s view, the CIA’s above repeated, deliberate recourse to the
complex flight-disguising methodologies typical of rendition flights
transporting detainees to “black sites” does not appear to be consistent with
the stated purpose of the CIA-linked planes landing in Lithuania, which
according to the Government had been merely the delivery of “special
cargo”, described as “communication” or “connection” equipment”, in the
context of the routine intelligence cooperation (see paragraphs 427-432
above).
508. The Court further observes that in respect of the above planes the
authorities applied a distinct practice, which resembles the special procedure
for landings of CIA aircraft in Szymany airport followed by the Polish
authorities in December 2002-September 2003 and found by the Court to
have been one of the elements indicative of the State’s complicity in the
CIA HVD Programme (see Al Nashiri v. Poland, cited above, §§ 418
and 442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 420
and 444).
In particular, as in Poland, the planes were not subject to any customs or
the border guard control. On 6 October 2005 the SBGS officer R.R. was
prevented from carrying out the N787WH plane inspection (see
paragraphs 174 and 366 above). In connection with the arrivals of the
“partners’” and the SSD officers at the airports, classified letters asking for
access to the aircraft were issued to the SBGS at least on two occasions –
one ex post facto, following the above incident with the SBGS officer on
6 October 2005 and one in connection with the N733MA landing in Palanga
on 25 March 2006. Also, the rendition planes landing involved special
security procedures organised by the CIA’s counterpart in Lithuania. As
confirmed by the SSD officers questioned in the course of the pre-trial
investigation, they used to escort “the partners”, that is to say, the CIA
teams to and from Vilnius and Palanga airports. In that connection, the CIA
asked the SSD to make security arrangements. In the airport, the CIA
vehicles approached the aircraft, whereas the SSD’s escorting vehicles
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remained at some distance (see paragraphs 174, 184, 315, 329, 337, 346,
366, 370-371 above).
509. At the fact-finding hearing held in the present case the experts,
Mr J.G.S. and Mr Black, confirmed categorically that – beyond reasonable
doubt – a CIA secret detention facility had operated in Lithuania in the
period indicated by the applicant. In the same categorical terms they
identified Lithuania as a country hosting the CIA secret detention facility
codenamed “Detention Site Violet” in the 2014 US Senate Committee
Report (see paragraphs 128-145 above). The 2015 Reprieve Briefing,
relying on research into the CIA rendition operations, the analysis of the
public data regarding the CIA prisoners’ transfers and the unredacted parts
of the report, likewise concluded that it had been established beyond
reasonable doubt that one of the facilities adapted by the CIA in Lithuania
had been used to hold prisoners and that Detention Site Violet had been
located in Lithuania (see paragraphs 120-122 above).
510. The experts and the Briefing gave the same time-frame – February
2005-March 2006 – for the CIA’s secret prison operation. The Briefing
stated that the opening of the site had been marked by the transfer of
prisoners which could have been effected on either or both of two CIA
rendition aircraft – N724CL, which landed in Vilnius on 17 February 2005,
or N787WH, which landed in Palanga on 18 February 2005 (see
paragraph 123 above).
Both experts stated that the opening of the CIA “black site” in Lithuania
had been prompted by the disagreements with the Moroccan authorities in
the administering of a secret detention site used by the CIA in Rabat, which
had led to the transfer of the CIA detainees out of Morocco (see
paragraphs 129, 132-133 and 139-141 above).
511. In that regard, Mr J.G.S. referred to the “cyclical nature” of the CIA
detention sites and explained that the CIA HVD Programme had included
several junctures “at which one detention close[d] abruptly and another
open[ed] in its place”. In his view, “17-18 February 2005 had been the
critical juncture at which CIA detention operations overseas had been
dramatically overhauled”. In the light of the flight data of February 2005,
there were only two destinations for detainees being taken from Morocco –
Romania and Lithuania.
Mr J.G.S. reached the “incontrovertible conclusion” that when the
facility in Morocco had been finally closed, the only possibility was that
Detention Site Violet in Lithuania then took the detainees from Morocco in
conjunction with Detention Site Black in Romania (see paragraphs 129-137
above). He further stated that references in the 2014 US Senate Committee
Report had “accorded completely with the timings, with the character and
with the chronological progression of detention operations in respect of
Lithuania”. He referred to the report’s sections stating that Detention Site
Violet had been created in a “separate country” from any of the other
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
235
detention sites mentioned therein. This, in his view, had opened a new
territory in the CIA HVD Programme and referred to a site that had endured
beyond the life span of Detention Site Black in Romania which, according
to report, was closed shortly after the Washington Post publication of
2 November 2005.
In that connection, Mr J.G.S. also testified that the two projects in
Lithuania aimed at providing support to the CIA detention operations,
referred to in the Seimas inquiry as Project No. 1 and Project No. 2,
corresponded to the description of two facilities in the country hosting
Detention Site Violet. In particular, the report stated that by mid-2003 the
CIA had concluded that its completed but still unused holding cell in the
country – by which it had meant Project No. 1 – had been insufficient. It
further stated that the CIA had thus sought to build a new expanded facility
in the country. This corresponded precisely with the description of the
provenance of Project No. 2 as given in the CNSD Findings (see
paragraph 133 above).
512. Mr Black said that the report clearly indicated that Detention Site
Violet had operated from February 2005 to March 2006. The site had been
in a country where there had previously been another site that had never
been used. This detail of there having been two sites, one never used and
one that had been used between February 2005 and March 2006
corresponded accurately with the parliamentary inquiry’s findings, stating
that “partners” – the CIA – had equipped two sites. His research established
that flights went into and out of Lithuania precisely at the time that the
prisoners were said to have been moved into and out of Detention Site
Violet. This corresponded with flights into and out of Lithuania in, firstly,
February 2005, then in October 2005 and lastly in March 2006 (see
paragraph 140 above).
Mr Black added that, taking into account the whole weight of various
indicators, “the only solution that ma[d]e any sense is that the solution that
indeed the site in Lithuania [had] operated at the times that we [had] stated
and [had been] serviced by the flights that we [had] stated” (see
paragraph 144 above).
513. In that context the Court would also note that, as shown by the
evidence referred to above, the 17-18 February 2005 flights were followed
by the landing on 6 October 2005 of the plane N787WH, which, according
to the experts, transferred CIA detainees, via a “double-plane switch”
operation in Tirana, from the CIA facility codenamed “Detention Site
Black” in the 2014 US Senate Committee Report and located in Bucharest.
Mr Black added that Khalid Sheikh Mohammed had been transferred from
Romania to Detention Site Violet in Lithuania on that plane (see
paragraphs 130-131 and 143-144 above).
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
514. The experts were not in complete agreement as to which date –
17 or 18 February 2005 – was the one definitely marking the opening of the
CIA “black site” in Lithuania.
Mr J.G.S. considered that it was more likely that the flight of N734CL on
17 February 2005 signified the opening of the “black site”, since it had
landed in Vilnius and Vilnius was the airport physically associated with
Antaviliai, the location of the CIA facility. However, he did not rule out the
possibility that another airfield, Palanga, may have been used in conjunction
with Vilnius (see paragraphs 130, 134 and 137 above).
Mr Black, for his part, was categorical in stating that the transfer of
detainees from Morocco to Lithuania had been executed by the N787WH
flight into Palanga on 18 February 2005 (see paragraphs 141-142 above).
However, the Court does not find it indispensable to rule on which
specific date the CIA site in Lithuania opened given that, according to the
evidence before it, there were only these two, closely situated, dates on
which it could have happened.
515. As regards the date marking the end of Detention Site Violet’s
operation, both Mr J.G.S. and Mr Black stated that it had been closed as a
result of medical issues experienced by CIA detainees, who had been
refused medical treatment in the country, as described in the 2014 US
Senate Committee Report. The experts linked the closure to the rendition
mission executed by the plane N733MA, which had landed in Palanga on
25 March 2006. They stated that it had taken the CIA prisoners via Cairo by
means of an aircraft switching operation to another detention facility, which
they unambiguously identified as “Detention Site Brown” located in
Afghanistan. The 2015 LIBE Briefing likewise stated that the above transfer
had matched the closure of Detention Site Violet. In that regard, it also
referred to the passages in the 2014 US Senate Committee Report, stating
that the site had been closed as a result of lack of available medical care in
the “five-character redacted” month in 2006 – the redacted month could
only be “March” or “April” on account of the length of the redaction (see
paragraphs 122-125 and 128-145 above).
516. As regards the physical location of Detention Site Violet, both
Mr J.G.S. and Mr Black stated that, beyond reasonable doubt, it had been
located in Antaviliai, a neighbourhood of Vilnius, in the former horse-riding
academy converted into a customised CIA detention facility, the
construction of which had been supervised by the CIA “afresh”. Mr Black,
who in 2011-2012 had made several trips to Antaviliai to interview local
people, said it was clear from those interviews that the Americans had been
there, had been fitting the site out, had been guarding the place and that
vehicles with tinted windows had been coming and going (see
paragraphs 137 and 140 above).
517. Lastly, the experts, on the analysis of the 2014 US Senate
Committee Report and recently declassified CIA material, also established
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
237
that at least five CIA prisoners were held at Detention Site Violet and
conclusively identified three of them – Mustafa al-Hawsawi, who was
explicitly mentioned in the report in connection with medical issues
experienced at that site, Khalid Sheikh Mohammed and the applicant (see
paragraphs 133, 135 and 141 above).
518. The Court observes that the 2014 US Senate Committee Report
includes several references to Detention Site Violet. It clearly refers to two
detention facilities in the country hosting that site: one completed but, “by
mid-2003”, still unused and considered by the CIA as insufficient “given
the growing number of CIA detainees in the program and the CIA’s interest
in interrogating multiple detainees at the same detention site” and one
“expanded” which the CIA “sought to build”. In that connection, the CIA
offered some redacted sum of USD million “to ‘show appreciation’ ... for
the ... support” for the CIA HVD Programme (see paragraph 147 above).
That information is consistent with evidence from witnesses M, N, O and P,
who were questioned in the criminal investigation. They confirmed that in
2003 N and O had been assigned to assist their CIA partners in finding
suitable premises for a joint project – an “intelligence support centre”– in
respect of which the partners had “used to cover all expenses”. According to
Witness P, in 2002-2003 the “partners” had come and proposed to organise
a joint operation, “to establish the premises in Lithuania for the protection
of secret collaborators”. Witness O said that the CIA partners had chosen
the premises which had then become Project No. 2 and that they had started
to come in Spring 2004, had carried out the work themselves and had
brought
material
and
the
equipment
in
the
containers
(see
paragraphs 333-337 above).
519. The 2014 US Senate Report further states that Detention Site Violet
“opened in early 2005” (see paragraph 148 above). This element
corresponds to the dates of the landings of the rendition planes N724CL and
N787WH – 17 and 18 February 2005. It also corresponds to the statement
of Witness S, who testified that Project No. 2 had been “established at the
beginning of 2005” (see paragraph 341 above).
The closure of Detention Site Violet is mentioned in the report in a
specific context and chronology, namely “press stories”, in particular the
Washigton Post publication of 2 November 2005 that led to the closure of
Detention Site Black and “the CIA’s inability to provide emergency medical
care” due to the refusal of the country hosting Detention Site Violet to admit
Mustafa al-Hawsawi, one of the CIA detainees, to a local hospital. This
refusal, according to the report, resulted in the CIA’s having sought
assistance from third-party countries in providing medical care to him and
“four other CIA detainees with acute ailments”. In relation to the
Washington Post publication, the report gives a fairly specific time-frame
for the closure of Detention Site Black, which occurred “shortly thereafter”.
However, Detention Site Violet still operated in “early January 2006”. At
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
that time “the CIA was holding twenty-eight detainees in its two remaining
facilities, Detention Site Violet ... and Detention Site Orange”. Detention
Site Violet was closed in 2006, in the month whose name comprised five
characters which were redacted in the report (see paragraph 149 above). As
noted in the 2015 Reprieve Briefing, there are only two possibilities: the
relevant month could be either “March” or “April” 2006.
520. Considering the material referred to above as whole, the Court is
satisfied that there is prima facie evidence in favour of the applicant’s
allegation that the CIA secret detention site operated in Lithuania between
17 or 18 February 2005 and 25 March 2006. Accordingly, the burden of
proof should shift to the respondent Government (see El-Masri, cited above,
§§ 154-165 and paragraph 482 above).
521. However, the Government have failed to demonstrate why the
evidence referred to above cannot serve to corroborate the applicant’s
allegations. Apart from their reliance on the conclusions of the criminal
investigation of 2010-2011 and, in particular, the testimony of witnesses
who, as the Government underlined, had all consistently denied that any
transfers of CIA detainees had taken place or that a CIA had run a secret
detention facility in Lithuania, they have not offered convincing reasons for
the series and purpose of the CIA-associated aircraft landings at Vilnius and
Palanga between 17 February 2005 and 25 March 2006, the special
procedures followed by the authorities in that connection and the actual
purpose
served
by Project No. 2 at the material time
(see
paragraphs 424-443 above).
522. The witness testimony obtained in the criminal investigation is the
key evidence adduced by the Government in support of their arguments (see
paragraphs 307-349 above). The Court has not had the possibility of having
access to full versions of the testimony since the relevant material was and
still is classified. It has nevertheless been able to assess that evidence on the
basis of a summary description produced by the Government (see
paragraphs 304-306 above).
Having considered the material submitted, the Court finds a number of
elements that do not appear to be consistent with the version of events
presented by the Government.
523. First, the Government asserted that both Project No. 1 and No. 2
were found to have been completely unsuitable for secret detention (see
paragraphs 433-442 above).
The Court does not find it necessary to analyse in detail the purposes
actually served by Project No. 1 or determine whether or not that facility
was used, as the Government argued at the oral hearing, for “extraction” or
“exfiltration” of secret agents or otherwise, since in the present case it is not
claimed that CIA detainees were held in that facility. It thus suffices for the
Court to take note of the CNSD’s conclusion that in Project No. 1
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
239
“conditions were created for holding detainees in Lithuania” (see
paragraph 174 above).
524. Secondly, as regards Project No. 2, the Government submitted that
while the exact purpose served by the premises at the material time could
not be revealed since it was classified, the witnesses had unequivocally
confirmed that no premises suitable for detainees had been located there.
Moreover, access to the premises had been under the permanent
surveillance of the SSD and there had been no secret zones inaccessible to
the SSD officers in the building. This excluded any possibility of
unauthorised access or holding detainees in the premises (see
paragraphs 436-441 above).
However, the Court notes that Witnesses N and O, the SSD officers
assigned to assist the CIA partners, who escorted them to and from the
airports and who were also responsible for supervision of the premises, said
that they had not visited all the rooms. Witness N said that he had not had
access to the “administration area”. O was not given access to all the
premises. Moreover, the building was apparently not used for the purpose of
the declared “joint operation” of an intelligence support centre. The only
Lithuanian intelligence personnel present in the building were the three SSD
officers M, N and O, who supervised the building on changing shifts even if
nobody was there. Witness O stated that he had not known who had arrived
at the premises or “with what they had been occupied with”. Witness N
“was not aware of the contents of the operations” that were carried out in
Project No. 2. Witnesses N and O “actively supervised” the building until
the second half of 2005 but then the number of the CIA partners’ visits
decreased (see paragraphs 333-337 above).
525. As regards the Government’s explanation that the premises were
acquired for the SSD’s needs and used for “short-term meetings” with “their
guests” (see paragraph 439 above), the layout of one of the buildings at
Project No. 2, depicted by the CPT as “a large metal container enclosed
within a surrounding external structure” and by the LIBE delegation as “a
kind of building within the building” (see paragraphs 289 and 352 above)
does not strike the Court as being a structure typical for the declared
purpose. Also, no convincing explanation has been provided as to why
Project No. 2, claimed to have been designated for an “intelligence support
centre” and reconstructed with evidently considerable effort and expense on
the part of the CIA had – according to the witnesses – been virtually unused
by the SSD or their partners throughout 2005 (see paragraphs 333-338
and 341 above).
526. The Government further argued that in the light of abundant
evidence it had been established in the criminal investigation that the
purpose of two CIA-linked flights into Palanga, alleged to have transported
the applicant to and out of Lithuania, namely N787WH and N733MA,
which had taken place on, respectively, 18 February 2005 and 25 March
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
2006 had been the delivery of a “special cargo”. The object of the delivery
was “special equipment for a special investigation department” in a number
of boxes, which had all been of the same size, one metre long (see
paragraphs 427-432 above).
527. However, the witness statements relied on are not only partly
inconsistent with each other but they also do not fully support the
Government’s account. Furthermore, the Government’s account is at
variance with evidence collected in the course of the parliamentary inquiry.
In this regard, the Court would refer to testimony given by the SSD officers
involved in escorting “cargo” and the CIA partners to and from the
Lithuanian airports and to the CNSD Findings.
528. As regards the Government’s submission that the purpose of the
flight N787WH which landed in Palanga on 18 February 2005 was the
delivery of cargo containing the “connection” or “communication”
equipment (see paragraphs 428-432 above), the Court notes that none of the
witnesses heard in the criminal investigation referred to any “delivery of
cargo” to Lithuania in relation to the plane in question (see
paragraphs 333-337 and 346 above). It further notes that the Government’s
contention stands in contrast with the CNSD Findings, which in the light of
the evidence gathered in the inquiry, established that “no cargo was
unloaded from it or onto it” (see paragraph 174 above). However, as
confirmed by the 2010 SBGS letter, “five US citizens arrived in the
Republic of Lithuania on that plane” (see paragraph 371 above).
529. Moreover, the statements made by witnesses V and O do not
support the Government’s contention that the purpose of the flight N733MA
into Palanga on 25 March 2006 was likewise “to deliver equipment” for the
Lithuanian “special investigation department”. On the contrary, the two
escorting officers clearly related the loading of a “cargo” onto the CIA
aircraft from the CIA partners’ vehicles (see paragraphs 333-337 and 346
above). This happened in the course of what was called an “operation”,
which suggests that the activities involved in the aircraft landing and
loading were not quite of a routine nature. As in respect of the other CIA
aircraft landings referred to above (see paragraphs 507-508 above), the
special procedure, without any customs or SBGS control, had been applied.
530. Having regard to the inconsistency of the Government’s version
with the witness statements and the factual findings made by the Lithuanian
Parliament and in the light of the documentary and expert evidence analysed
in detail above, the Government’s explanations as to the purposes served by
the CIA rendition flights landing in Lithuania between 17 February 2005
and 25 March 2006 and the facility Project No. 2 cannot be regarded as
convincing.
531. In view of the foregoing and taking into account all the elements
analysed in detail above, the Court concludes that the Government have not
produced any evidence capable of contradicting the applicant’s allegations.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
241
In particular, they have not refuted the applicant’s argument that the
planes N724CL, N787WH and N733MA that landed in Lithuania between
17 February 2005 and 25 March 2006 served the purposes of the CIA
rendition operations and the conclusions of the experts heard by the Court,
categorically stating that the aircraft in question were used by the CIA for
transportation of prisoners into Lithuania. Nor have they refuted the
applicant’s assertion that the above rendition flights marked the opening and
the closure of a CIA secret prison referred to in the 2014 US Senate Report
as “Detention Site Violet”, which was conclusively confirmed by expert
evidence to the effect that Detention Site Violet was located in Lithuania
and operated during the period indicated by the applicant (see also and
compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn
(Abu Zubaydah) v. Poland, cited above, §§ 414-415).
532. Consequently, the Court considers the applicant’s allegations
sufficiently convincing and, having regard to the above evidence from
various sources corroborating his version, finds it established beyond
reasonable doubt that:
(a) a CIA detention facility, codenamed Detention Site Violet according
to the 2014 US Senate Committee Report, was located in Lithuania;
(b) the facility started operating either from 17 February 2005, the date
of the CIA rendition flight N724CL into Vilnius airport, or from
18 February 2005, the date of the CIA rendition flight N787WH into
Palanga airport; and
(c) the facility was closed on 25 March 2006 and its closure was marked
by the CIA rendition flight N733MA into Palanga airport, which arrived
from Porto, Portugal and, having disguised its destination in its flight plan
by indicating Porto, on the same day took off for Cairo, Egypt.
(b) Whether the applicant’s allegations concerning his rendition to Lithuania,
secret detention at the CIA Detention Site Violet in Lithuania and transfer
from Lithuania to another CIA detention facility elsewhere were proved
before the Court
533. It is alleged that the applicant was transferred to Lithuania from
Rabat, Morocco either on 17 February 2005 on board N724CL or on
18 February 2006 on board N787WH and that he had been secretly detained
at Detention Site Violet in Lithuania until 25 March 2005, when he had
been
transferred
out
of
Lithuania
on
board
N733MA
(see
paragraphs 112-117 above).
(i) Preliminary considerations
534. The Court is mindful of the fact that, as regards the applicant’s
actual presence in Lithuania, there is no direct evidence that it was the
applicant who was transported on 17 or 18 February 2005, the two possible
dates indicated by the experts (see paragraphs 130-135 above) from Rabat
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
to Lithuania or that he was subsequently transferred on 25 March 2006 from
Lithuania to another CIA secret detention facility on board the plane
N733MA.
The applicant, who for years on end was held in detention conditions
specifically designed to isolate and disorientate detainees by transfers to
unknown locations, even if he had been allowed to testify before the Court,
would not be able to say where he was detained. Nor can it be reasonably
expected that he will ever, on his own, be able to identify the places in
which he was held.
No trace of the applicant can, or will, be found in any official flight or
border police records in Lithuania or in other countries because his presence
on the planes and on their territories was, by the very nature of the rendition
operations, purposefully not to be recorded. As confirmed by expert J.G.S.
in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, in the
countries concerned the official records showing numbers of passengers and
crew arriving and departing on the rendition planes neither included, nor
purported to include detainees who were brought into or out of the territory
involuntarily, by means of clandestine HVD renditions. Those detainees
were never listed among the persons on board in documents filed with any
official institution (see Al Nashiri v. Poland, cited above, §§ 410-411; and
Husayn (Abu Zubaydah) v. Poland, cited above, §§ 410-411).
535. In view of the foregoing, in order to ascertain whether or not it can
be concluded that the applicant was detained at Detention Site Violet in
Lithuania at the relevant time, the Court will take into account all the facts
that have already been found established beyond reasonable doubt (see
paragraphs 489-532 above) and analyse all other material in its possession,
including, in particular, the 2014 US Senate Committee Report and expert
evidence reconstructing the chronology of the applicant’s rendition and
detention in 2002-2006 (see paragraphs 102-156, 159, 167-200 and 264-395
above).
(ii) Transfers and secret detention
536. As noted above, the facts of the present case form an integral part
of a chain of events lasting from the applicant’s capture on 27 March 2002
to his transfer by the CIA into the custody of the US military authorities in
the Guantánamo Bay Naval Base on 5 September 2006. Those events took
place in multiple countries hosting the CIA secret detention facilities that
operated under the HVD Programme during that period. They involve a
continuing sequence of the applicant’s renditions from one country to
another, with the periods of his detention at each country’s “black site”
being marked by the movements of the CIA’s rendition aircraft
corresponding to locations within the network of secret prisons (see
paragraphs 485-488 above).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
243
537. The Court further notes that the facts concerning the applicant’s
secret detention and continuous renditions from the time of his capture in
Faisalabad, Pakistan, on 27 March 2002 to his rendition from Rabat,
Morocco, in February 2005, including the names of the countries in which
he was detained, the exact dates on which he was transferred by the CIA to
and out of each country and the identities of all the rendition planes on
which he was transferred have already been established conclusively and to
the standard of proof beyond reasonable doubt in Husayn (Abu Zubaydah)
v. Poland and in the present case (see Husayn (Abu Zubaydah) v. Poland,
cited above, §§ 404 and 419; and paragraphs 489-532 above).
538. In particular, it has been established beyond reasonable doubt that
until an unspecified date in February 2005 the applicant was held in secret
detention in Morocco, at a facility used by the CIA and that on that date he
was transferred by the CIA from Morocco to another detention facility
elsewhere (see paragraph 497 above).
It has also been established to the same standard of proof, beyond
reasonable doubt, that:
(a) The CIA secret detention facility codenamed “Detention Site Violet”
in the 2014 US Senate Committee Report became operational in Lithuania
either on 17 February 2005, the date of the CIA rendition flight N724CL
from Rabat via Amman, which landed at Vilnius airport or on 18 February
2005, the date of the CIA rendition flight N787WH from Rabat via
Bucharest, which landed at Palanga airport.
(b) The Detention Site Violet operated in Lithuania until 25 March 2006,
the date of the CIA rendition flight N733MA from Palanga airport to Cairo
(see paragraph 532 above).
539. It accordingly remains for the Court to determine whether it has
been adequately demonstrated to the required standard of proof that the
applicant was transferred from Morocco to Lithuania on either of the
February 2005 CIA flights and whether he was secretly detained in
Lithuania over the subsequent period, until 25 March 2006.
540. The Court observes that the main argument put forward by the
Government is that there is no credible evidence confirming the applicant’s
presence in Lithuania during that period and no link between the impugned
flights and the applicant. In the Government’s submission, even if the
flights had been linked with the CIA and landed in Lithuania, it could not
constitute a proof of his detention in the country (see paragraphs 426
and 443 above).
It has already been reiterated above that, given the veil of secrecy
surrounding the CIA rendition operations, it cannot be expected that any
traces of the applicant are to be found in any official flight or border control
records in Lithuania or elsewhere. As in other cases concerning the CIA
HVD Programme the fate of the applicant can be reconstructed only by an
analysis of strings of data from various sources available in the public
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
domain and expert evidence (see paragraph 487 above). The fact that the
applicant’s name does not appear in the official record with reference to his
alleged secret detention in Lithuania is not therefore decisive for the Court’s
assessment.
541. In that regard, the Court notes that the 2014 US Senate Committee
Report contains a number of often extensive references to the applicant, in
particular in relation to the EITs inflicted on him during the series of
interrogations, including the use of waterboarding, in the early stages of his
secret detention at Detention Site Green located in Thailand and
“debriefing” that he underwent at Detention Site Blue located in Poland (see
paragraphs 92-96 above). Yet, as also confirmed by the experts, the report
does not mention the applicant explicitly by name in connection with
Detention Site Violet (see paragraphs 135, 137 and 141 above).
542. Nonetheless, the experts, following a comprehensive analysis of the
entirety of the available documentary evidence concerning the CIA’s
extraordinary rendition operations at the material time, were able to
conclude that he had been detained at that site on the basis of a number of
other elements consistently demonstrating that there is no – and there could
not be any – alternative account of the applicant’s fate following his
February 2005 rendition from Morocco.
The Court would reiterate that the experts started by determining, beyond
reasonable doubt, that Morocco was the only place in which the applicant
could have been detained in February 2005 and that, according to the
rendition aircraft schedules at that time he could only have been transferred
from there either to Detention Site Black in Romania or to Detention Site
Violet in Lithuania. On the basis of evidence indicating his absence from
Detention Site Black in the relevant period, the one and only remaining
destination of the applicant’s transfer from Rabat was Detention Site Violet.
They further went on to infer information relevant for the applicant from
unredacted passages of the report concerning other HVDs in CIA custody,
Khalid Sheikh Mohammed and Mustafa al-Hawsawi, simultaneously being
detained in the country hosting Detention Site Violet. The experts correlated
this information with the data relating to the CIA detainee transfers in the
period of the operation of the Lithuanian site, including the transfer from
Detention Site Black to Detention Site Violet on 6 October 2005 and the
transfer from Detention Site Violet, via Cairo and an aircraft switching
operation, to Detention Site Brown (see paragraphs 132, 134-135, 137 and
141-143 above).
543. The Court would refer, in particular, to the following statements
made by the experts.
Mr J.G.S. stated that “through an intimate familiarity with the
chronology of [the applicant’s] detention” he had reached the conclusion
that “there [was] only one place he could have been in the early part of 2005
and that that place was indeed Morocco”. He knew that “the transfers out of
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
245
Morocco in 2005 went to other active ‘black sites’ that that one of these was
‘Detention Site Black’ in Romania, but that there was also another one in a
separate country ... and ... this other country was Lithuania”. He added that
“because [the applicant] did not arrive in Romania, ‘Detention Site Black’”
– which he knew based on his “years’ long investigations into the
operations of that site ... the only other destination to which he could have
been transferred was the active site in Lithuania and this transfer took place
in accordance with the flights ... in February 2005” (see paragraph 137
above).
Mr Black testified that, based on the overall effect of the evidence, he
was satisfied “that beyond reasonable doubt Abu Zubaydah was held in
Lithuania starting from February 2005”. He said that while prima facie it
was possible that the applicant, being in Morocco in February 2005, had
been moved either to Romania or to Lithuania, there was evidence
indicating, first, that he was not in Romania in or prior to the Summer 2005
and, second, that he was in Lithuania in March 2005 (see
paragraphs 141-144 above).
544. The experts attributed a different threshold of proof to their
conclusions.
Mr J.G.S. stated that on the “balance of probabilities”, he believed it was
established that the applicant had been secretly detained at Detention Site
Violet (see paragraph 137). He was nevertheless satisfied as to “the
presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the
point where the CIA detention [facility] [had been] cleared, thereafter on the
territory of Lithuania in Detention Site coded as ‘Violet’ and thereafter on
the territory of Afghanistan in the Detention Site coded as ‘Brown’” (see
paragraph 139 above). Also, he said that there was a “categorical certainty”
that the applicant had been brought to Lithuania on one of the February
2005 flights from Morocco to Lithuania – N724CL or N787WH – either on
17 or on 18 February 2005 and that “beyond reasonable doubt he [had been]
taken to Afghanistan when he [had] left Lithuania” (see paragraphs 134, 137
and 139 above).
Mr Black categorically stated that the applicant, beyond reasonable
doubt, had been held in Lithuania from February 2005 onwards and that he
believed that the applicant had been “flown into Lithuania on N787WH on
18 February 2005 and flown out of Lithuania on N733MA and N70EH on
25 March 2006” (see paragraphs 142-143 above).
545. The Court does not consider that this difference in terminology
used by the experts has a direct and dispositive bearing on its own
assessment of the evidence. It reiterates that, while in assessing evidence it
applies “the standard of proof beyond reasonable doubt”, that concept is
independent from the approach of the national legal systems which use that
standard. The Court is not called upon to rule on criminal guilt or civil
liability based on “beyond reasonable doubt” or “balance of probabilities”
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
standards as applied by the domestic courts but on the responsibility of the
respondent State under the Convention (see paragraph 481 above, with
references to the Court’s case-law).
546. Based on its free evaluation of all the material in its possession, the
Court considers that there is prima facie evidence corroborating the
applicant’s allegation as to his secret detention in Lithuania, at Detention
Site Violet, from 17 or 18 February 2005 to 25 March 2006. Consequently,
the burden of proof should shift to the respondent Government.
547. However, the Government, apart from their above contention that
there is no credible evidence confirming the applicant’s detention in
Lithuania, in particular in any border control records, and their general
denial that any CIA secret detention facility had operated in the country,
have not adduced any counter-evidence capable of refuting the experts’
conclusions.
Having regard to the very nature of the CIA secret detention scheme, the
Government’s argument that there is no indication of the applicant’s
physical presence in Lithuania – which they sought to support by the fact
that his name had not been found in the records of passengers on the flights
in February 2005-March 2006 (see paragraphs 426-428 above) – cannot be
upheld. In the Court’s view, it would be unacceptable if the Government,
having failed to comply with their obligation to register duly and in
accordance with the domestic law all persons arriving on or departing from
Lithuanian territory on the CIA planes and having relinquished any border
control in respect of the rendition aircraft (see paragraphs 508 above), could
take advantage of those omissions in the fact-finding procedure before the
Court. When allowing the CIA to operate a detention site on Lithuanian soil
the Government were, by pure virtue of Article 5 of the Convention,
required to secure the information necessary to identify detainees brought to
the country (see paragraphs 652-654 below, with references to the Court’s
case-law). The Court cannot accept that the Government’s failure to do so
should have adverse consequences for the applicant in its assessment of
whether it has been adequately demonstrated by the Government, against
the strong prima facie case made by the applicant, that his detention in
Lithuania did not take place.
548. In view of the foregoing, the Court considers the applicant’s
allegations sufficiently convincing. For the same reasons as stated above in
regard to the date marking the opening of Detention Site Violet (see
paragraph 514 above), the Court does not find it indispensable to rule on
which of the two dates indicated by the applicant – 17 or 18 February 2005
– and on which of the two planes – N724CL or N787WH – he was brought
to Lithuania.
Consequently, on the basis of strong, clear and concordant inferences as
related above, the Court finds it proven to the required standard of proof
that:
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247
(a) on 17 or 18 February 2005 the applicant was transferred by the CIA
to from Rabat, Morocco to Lithuania on board either the rendition plane
N724CL or the rendition plane N787WH;
(b) from 17 or 18 February 2005 to 25 March 2006 the applicant was
detained in the CIA detention facility in Lithuania codenamed “Detention
Site Violet” according to the 2014 US Senate Committee Report; and
(c) on 25 March 2006 on board the rendition plane N733MA and via a
subsequent aircraft-switching operation the applicant was transferred by the
CIA out of Lithuania to another CIA detention facility, identified by the
experts as being codenamed “Detention Site Brown” according to the 2014
US Senate Committee Report.
(iii) The applicant’s treatment in CIA custody in Lithuania
549. The applicant stated that, as in Husayn (Abu Zubaydah) v. Poland
on account of the secrecy of the HVD Programme and restrictions on his
communications with the Court, he could not present specific evidence of
what had happened to him in Lithuania. However, as the Court found in the
above case, at an absolute minimum detainees in CIA custody, whether in
Lithuania or elsewhere, would have been subjected to the applicable
standard conditions of detention at the relevant time, including solitary
confinement, shackling, exposure to bright light, low and loud noise on a
constant basis and the standard conditions of transfer, stripping, shaving,
hooding, diapering and strapping down into painful crammed positions.
The Government have not addressed this issue.
550. The Court observes that, in contrast to treatment inflicted on the
applicant during an early period of his secret detention, which is often
documented in detail in various material (see paragraphs 92-97 above),
there is no evidence demonstrating any instances of similar acts at Detention
Site Violet. According to the 2014 US Senate Committee Report, the
applicant from his capture to his transfer to US military custody on
5 September 2006 “provided information”, which resulted “in 766
disseminated intelligence reports”. The fact that nearly 600 such reports
were produced between September 2002 and September 2006 indicates that
he was continually interrogated or “debriefed” by the CIA during the entire
period of his secret detention (see paragraph 156 above). However, in the
light of the material in the Court’s possession, it does not appear that in
Lithuania the applicant was subjected to the EITs in connection with
interrogations (see paragraphs 48-55 above).
As regards recourse to harsh interrogation techniques at the relevant
time, the 2014 US Senate Committee Report states in general terms that in
mid-2004 the CIA temporarily suspended the use of the EITs. While their
use was at some point resumed and they were apparently applied throughout
the most part of 2005, such techniques were again temporarily suspended in
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late 2005 and in 2006. However, the applicant’s name is not mentioned in
that context (see paragraph 86 above).
551. According to the experts, it was not possible to pronounce
categorically on specific interrogation techniques or other forms of
treatment or ill-treatment practised on the applicant in Lithuania, as in
2005-2006 there was less information about the treatment of prisoners in the
HVD Programme than there had been in the previous years. However, the
CIA documents and the 2014 US Senate Committee Report described the
routine conditions of detention at “black sites”, which included such
practices as sensory deprivation, sleep deprivation, denial or religious rights
and incommunicado detention. Those conditions alone passed the threshold
of treatment prohibited by Article 3 of the Convention (see
paragraphs 154-155 above).
552. As regards the Court’s establishment of the facts of the case,
detailed rules governing conditions in which the CIA kept its prisoners
leave no room for speculation as to the basic aspects of the situation in
which the applicant found himself from 17 or 18 February 2005 to
25 March 2006. The Court therefore finds it established beyond reasonable
doubt that the applicant was kept – as any other high-value detainee – in
conditions described in the DCI Confinement Guidelines, which applied
from the end of January 2003 to September 2006 to all CIA detainees (see
paragraphs 54-56 above; see also Husayn (Abu Zubaydah) v. Poland, cited
above, §§ 418-419 and 510).
While at this stage it is premature to characterise the treatment to which
the applicant was subjected during his detention at Detention Site Violet for
the purposes of his complaint under the substantive limb of Article 3 of the
Convention, the Court would point out that that regime included at least “six
standard conditions of confinement”. That meant blindfolding or hooding
the detainees, designed to disorient them and keep from learning their
location or the layout of the detention facility; removal of hair upon arrival
at the site; incommunicado, solitary confinement; continuous noise of high
and varying intensity played at all times; continuous light such that each cell
was illuminated to about the same brightness as an office; and use of leg
shackles in all aspects of detainee management and movement (see
paragraphs 55-56 above).
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249
5. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning Lithuania’s
knowledge of and complicity in the CIA HVD Programme
(a) Relations of cooperation between the Lithuanian authorities and the CIA,
including an agreement to host a CIA detention facility, acceptance of a
financial reward for supporting the HVD Programme and assistance in
the acquisition and adaptation of the premises for the CIA’s activities
(Project No. 1 and Project No. 2)
(i) Agreement to host a CIA detention facility and acceptance of a financial
reward for supporting the HVD Programme
553. The Government firmly denied that the State authorities had
received any CIA request that would even vaguely imply the running of a
secret detention facility on Lithuanian territory. The prospects of receiving
from the US authorities a request for assistance in the “war on terror” had
been considered by the SSD on a purely theoretical basis. Moreover, in the
criminal investigation all the Heads of State in office at the material time
had consistently testified that they had not known about any detainees
transfers and had not given their consent to the transportation of any persons
held by the CIA (see paragraph 445 above).
554. However, the above contention does not seem to be supported by
the CNSD Findings, which established that the SSD had received a request
from the CIA “to equip facilities in Lithuania suitable for holding
detainees”. In that connection, the CNSD referred to the testimony of the
former Head of State, Mr Rolandas Paksas who had confirmed that
Lithuania had been asked for permission to bring into the country persons
suspected of terrorism; however, the information that he had received had
not mentioned a detention centre or prison. The former Director General of
the SSD, Mr Mečys Laurinkus testified that in mid-2003 he had informed
Mr Paksas about a possibility of receiving a “request to participate in the
programme concerning the transportation of detainees” after Lithuania’s
accession to NATO (see paragraph 174 above). In that context, the Court
would refer to the 2014 US Senate Report, which states, in relation to
Detention Site Violet, that at the same time, that is “by mid-2003”, the CIA
“had concluded that its completed but still unused holding cell in Country ...
[had been] insufficient” and had “sought to build a new, expanded detention
facility in the country” (see paragraph 147 above). The Court would also
note that Lithuania’s accession to NATO took place on 29 March 2004 (see
paragraph 364 above).
The CNSD further established that, “when carrying out the SSD
partnership cooperation Project No. 1 and Project No. 2, the ... heads of the
SSD [had] not inform[ed] any of the country’s officials of the purposes and
content of the said projects”. On the basis of the material in its possession, it
related that although Mr Laurinkus had received a negative answer from
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Mr Paksas in respect of the “bringing into the Republic of Lithuania of
persons interrogated by the USA”, he had not asked either Mr Paksas or
acting Head of State, Mr Artūras Paulauskas, for “political approval of
activities under Project No. 2”. Mr Laurinkus had “had knowledge of
launching the activities under Project No. 2” in March-April 2004 – which,
the Court would note, was around the same time as Lithuania’s accession to
NATO. Several SSD officers, including the Director General, Mr Arvydas
Pocius, and acting Director General, Mr Dainius Dabašinskas had “had
knowledge of Project No. 2 at the time of launching” (see paragraph 174
above).
Mr Valdas Adamkus, the former Head of State stated that “no
information [had been] provided to [him] about running Project No. 2 in
2004-2006”. However, according to Mr Pocius, Mr Adamkus had been
“adequately informed” of Project No. 2 (see paragraphs 174, 177-178
and 367 above).
In the Seimas public debate on the CNSD Findings it was again
confirmed that the SSD had received a request from the CIA “to install
premises ... suitable for keeping detainees” (see paragraphs 177-178 above).
555. Witness evidence obtained in the criminal investigation also
confirms that fact. Witness A, an important political post-holder at the
relevant time, testified that Mr Laurinkus had addressed Mr Paksas in
connection with a “temporary possibility to hold persons suspected of
terrorism” and received a negative answer (see paragraph 307 above).
Witness B2, an another important political post-holder, confirmed that he
had been addressed “as regards the transportation and holding [of] people in
Lithuania” and that he had not approved the idea (see paragraph 314 above).
556. Moreover, referring to the availability of information of the
establishment of the CIA clandestine detention sites, the 2014 US Senate
Committee Report clearly confirms that the “political leaders of host
countries were generally informed of their existence” (see paragraph 79
above).
The report further confirms that an approval for the CIA detention
facility corresponding to Project No. 2 was received from the authorities.
Although the relevant section specifying a person or authority is heavily
redacted, it clearly states that “the plan to construct the expanded facility
was approved by the [redacted] of the Country” – which, however, required
“complex mechanisms” in order to provide an unspecified amount of USD
million to the country’s authorities. The money was offered to “show
appreciation” for the support for the CIA programme. It may be inferred
from the report that certain national authorities “probably [had] an
incomplete notion” as to the CIA facility’s “actual function”. Also, the
report refers to a certain official who, when he became aware of the facility,
was described as “shocked” but “nonetheless approved” it (see
paragraph 147 above).
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251
557. As regards the money paid by the CIA to the authorities, the Court
would note that the fact that such financial rewards were, as a matter of
general policy and practice, offered to the authorities of countries hosting
CIA “black sites” is confirmed in Conclusion 20 of the 2014 US Senate
Committee Report. The conclusion states that “to encourage governments to
clandestinely host CIA detention sites, or to increase support for existing
sites, the CIA provided millions of dollars in cash payments to foreign
government officials” and that “the CIA Headquarters encouraged CIA
Stations to construct ‘wish lists’ of proposed financial assistance” and “to
‘think big’ in terms of that assistance” (see paragraph 89 above).
(ii) Assistance in the acquisition and adaptation of the premises for the CIA’s
activities (Project No. 1 and Project No. 2)
558. It is undisputed and has been confirmed by the CNSD Findings and
in the criminal investigation that Project No. 1 and Project No. 2 were
implemented in cooperation with the CIA. Nor has it been contested that in
the framework of that cooperation the SSD adapted the premises of Project
No. 1 according to the CIA’s requests, assisted the CIA in acquiring the
premises of Project No. 2 and adapting and reconstructing the premises for
the CIA’s needs (see paragraphs 174 and 199 above). The cooperation dated
back to 2002 and started from the adaptation of Project No. 1. Later, in 2003
several officers of the SSD were assigned to assist the CIA in finding a
suitable location for Project No. 2 and purchasing the land and buildings in
Antaviliai. Both projects were fully financed by the CIA. Starting from the
beginning of 2005 when the Project No. 2, according to Witness S, was
“established”, the SSD officers ensured the security and surveillance of the
premises (see paragraphs 333-338 and 341 above).
(b) Assistance in disguising the CIA rendition aircraft routes through
Lithuania by means of the so-called “dummy” flight planning
559. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the
fact that the national authorities had cooperated with the CIA in disguising
the rendition aircraft’s actual routes and validated incomplete or false flight
plans in order to cover up the CIA’s activities in the country was considered
relevant for the Court’s assessment of the State authorities’ knowledge of,
and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited
above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 421-424). The Court will follow that approach in analysing the facts of
the present case.
560. It has already been established that in respect of three rendition
flights – N787WH on 18 February 2005, N787WH on 6 October 2005 and
N733MA on 25 March 2006 the CIA used the methodology of “dummy”
flight planning – an intentional disguise of flight plans for rendition aircraft
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applied by the air companies contracted by the CIA (see paragraph 507
above).
As the Court found in the judgments referred to above, the “dummy”
flight planning, a deliberate effort to cover up the CIA flights into the
country, required active cooperation on the part of the host countries
through which the planes travelled. In addition to granting the CIA rendition
aircraft overflight permissions, the national authorities navigated the planes
through the country’s airspace to undeclared destinations in contravention
of international aviation regulations and issued false landing permits (ibid.).
561. Consequently, the fact that the Lithuanian aviation authorities
participated in the process demonstrated that Lithuania knowingly assisted
in the CIA scheme disguising the rendition planes.
(c) Special procedure for CIA flights
562. The Government acknowledged that the CIA planes on two
occasions had not been subject to the customs and SBGS control, in
connection with the delivery of a “special cargo” for the Lithuanian services
(see paragraph 429 above). To this end, the SSD addressed classified letters
to the relevant authorities. The purpose was to obtain unrestricted access to
the aircraft for the SSD and the CIA partners. As described by the witnesses
questioned in the criminal investigation, the CIA teams were escorted to the
area in the airport and drove in their vehicles to the aircraft, whereas the
SSD officers escorting them remained in their vehicles at some distance. As
noted above, that practice resembled the special procedure followed by the
Polish authorities in respect of the CIA rendition planes landings in
Szymany in December 2002-September 2003 (see paragraph 508 above,
with references to Al Nashiri v. Poland and Husayn (Abu Zubaydah)
v. Poland).
(d) Circumstances routinely surrounding HVDs transfers and reception at the
CIA “black site”
563. The Court considers, as it did in Al Nashiri v. Poland and Husayn
(Abu Zubaydah) v. Poland, that the circumstances and conditions in which
HVDs were routinely transferred by the CIA from rendition planes to the
CIA “black sites” in the host countries should be taken into account in the
context of the State authorities’ alleged knowledge and complicity in the
HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn
(Abu Zubaydah) v. Poland, cited above, § 439).
It follows from the Court’s findings in the above cases and the CIA
material describing the routine procedure for transfers of detainees between
the “black sites” (see paragraphs 47-48 above) that for the duration of his
transfer a HVD was “securely shackled” by his hands and feet, deprived of
sight and sound by the use of blindfolds, earmuffs and a hood and that upon
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
253
arrival at his destination was moved to the “black site” under the same
conditions.
564. The Court finds it inconceivable that the transportation of prisoners
over land from the planes to the CIA detention site could, for all practical
purposes, have been effected without at least minimal assistance by the host
country’s authorities, to mention only securing the area near and around the
landing planes and providing conditions for a secret and safe transfer of
passengers. Inevitably, the Lithuanian personnel responsible for security
arrangements, in particular the reception of the flights and on-land transit,
must have witnessed at least some elements of the detainees’ transfer to
Detention Site Violet, for instance the loading or unloading of blindfolded
and shackled passengers from the planes (see also Al Nashiri v. Poland,
cited above, §§ 330 and 437; and Husayn (Abu Zubaydah) v. Poland, cited
above, §§ 322 and 439).
Consequently, the Court concludes that the Lithuanian authorities which
received the CIA personnel in the airport could not have been unaware that
the persons brought by them to Lithuania were the CIA prisoners.
(e) Public knowledge of treatment to which captured terrorist suspects were
subjected in US custody in 2002-2005
565. The Court also attaches importance to various material referring to
ill-treatment and abuse of terrorist suspects captured and detained by US
authorities in the “war on terror”, which was available in the public domain
at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland,
cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441;
and Nasr and Ghali, cited above, § 234).
566. Before analysing that material, the Court would refer to President
Bush’s memorandum of 7 February 2002, stating that neither al-Qaeda nor
Taliban detainees qualified as prisoners of war under the Geneva
Conventions and that Common Article 3 of the Geneva Conventions, did
not apply to them (see paragraph 226-231 above). The White House Press
Secretary announced that decision at the press conference on the same day.
It was widely commented in the US and international media. That decision,
however, included a disclaimer that even detainees “not legally entitled” to
be treated humanely would be so treated, and also spoke of respecting the
principles of the Geneva Conventions “to the extent appropriate and
consistent with military necessity” (see paragraphs 29-30 above).
Consequently, already at this very early stage of the “war on terror” it was
well known that “military necessity” was a parameter for determining the
treatment to be received by the captured terrorist suspects.
567. The Court would further note that from at least January 2002, when
the UN High Commissioner for Human Rights issued a statement relating to
detention of Taliban and al-Qaeda prisoners in Guantánamo, strong
concerns were expressed publicly as to the treatment of detainees, in
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particular the use of “stress and duress” methods of interrogations and
arbitrary and incommunicado detention. From January 2002 onwards the
international governmental and non-governmental organisations regularly
published reports and statements disclosing ill-treatment and abuse to which
captured terrorist suspects were subjected in US custody in various places,
for instance in Guantánamo and the US Bagram military base in
Afghanistan. The material summarised above and cited in the AI/ICJ’s
amicus curiae brief include only some sources selected from a large amount
of documents available in the public domain throughout the above period
(see paragraphs 234-250 and 465-471 above).
Moreover, in the 2003 PACE Resolution of 26 June 2003 – of which
Lithuania, one of the Council of Europe’s member States, must have been
aware – the Parliamentary Assembly of the Council of Europe was “deeply
concerned at the conditions of detention” of captured “unlawful
combatants” held in the custody of the US authorities (see paragraph 238
above).
568. At the material time the ill-treatment, use of harsh interrogation
measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US
custody, as well as the existence of “US overseas centres” for interrogations
was also often reported in the international media from early 2002 (see
paragraphs 251-255 above). Following the Washington Post report on
2 November 2005, which disclosed the complicity of the “Eastern European
countries” in the CIA HVD Programme and prompted the closure of “black
sites” in Europe, as well as the ABC News disclosure and the 2005 HRW
Statement naming Poland and Romania as CIA accomplices, there could be
no doubt as what kind of activities had been carried out by the CIA in the
countries concerned (see paragraphs 248-249 and 256-257 above). At that
time, Detention Site Violet in Lithuania was still active.
The issue of the CIA renditions and abusive detention and interrogation
practices used against the captured terrorist suspects in their custody was
also present, reported and discussed in the Lithuanian media. In particular,
between June 2004 and November 2005 the Lithuanian press published a
number of articles concerning secret renditions, ill-treatment of prisoners
and the abusive conditions under which detainees were held and
interrogated (see paragraph 263 above).
(f) Informal transatlantic meeting
569. As in Al Nashiri v. Poland (cited above, § 434) and Husayn (Abu
Zubaydah) v. Poland (cited above, § 436) the Court considers the informal
transatlantic meeting of the European Union and North Atlantic Treaty
Organisation foreign ministers with the then US Secretary of State,
Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements
relevant for its assessment of the respondent State’s knowledge of the CIA
rendition and secret detention operations in 2003-2005.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
255
570. In his testimony in Al Nashiri v. Poland and Husayn (Abu
Zubaydah) v. Poland, Mr Fava stated that the meeting had been convened in
connection with recent international media reports, including disclosures by
the Washington Post and ABC News of, respectively, 2 November 2005 and
5 December 2005, naming European countries that had allegedly had CIA
“black sites” on their territories (see Al Nashiri v. Poland, cited above,
§§ 306 and 434; and Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 300 and 436). He also described the content of the “debriefing” of that
meeting, a document that the TDIP obtained from a credible confidential
source in the offices of the European Union. He stated that it had appeared
from Ms Rice’s statement “we all know about these techniques” made in the
context of the CIA operations and interrogations of terrorist suspects, which
had been recorded in the debriefing that there had been an attempt on the
USA’s part to share the “weight of accusations” (ibid., see alsp paragraph
359 above)).
As pointed out by the applicant (see paragraph 460 above), Lithuania, an
EU and NATO member must have participated in that meeting and been
aware of the issues discussed. At that time, the CIA detention site in
Lithuania was still active.
6. The Court’s conclusion as to the Lithuanian authorities’ knowledge
of and complicity in the CIA HVD Programme
571. The Court is mindful of the fact that knowledge of the CIA
rendition and secret detention operations and the scale of abuse to which
high-value detainees were subjected in CIA custody has evolved over time,
from 2002 to the present day. A considerable part of the evidence before the
Court emerged several years after the events complained of (see
paragraphs 22-24, 34-56, 287-294 and 296-303 above; see also Al Nashiri
v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited
above, § 442).
Lithuania’s alleged knowledge and complicity in the HVD Programme
must be assessed with reference to the elements that its authorities knew or
ought to have known at or closely around the relevant time, that is to say,
between 17 or 18 February 2005 and 25 March 2006. However, the Court,
as it has done in respect of the establishment of the facts relating to the
applicant’s secret detention in Lithuania, will also rely on recent evidence
which, as for instance the 2014 US Senate Committee Report and expert
evidence obtained by the Court, relate, explain or disclose facts occurring in
the past (see Al Nashiri v. Poland, cited above, § 440 and Husayn (Abu
Zubaydah) v. Poland, cited above, § 442).
572. In its assessment, the Court has considered all the evidence in its
possession and the various related circumstances referred to above. Having
regard to all these elements taken as a whole, the Court finds that the
Lithuania authorities knew that the CIA operated, on Lithuanian territory, a
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
detention facility for the purposes of secretly detaining and interrogating
terrorist suspects captured within the “war on terror” operation by the US
authorities.
This finding is based on the material referred to extensively above, in
particular the evidence deriving from the 2014 US Senate Committee
Report and, to a considerable extent, the evidence from experts.
The passages of the report relating the approval for the plan to construct
the expanded detention facility given by the Detention Site Violet host
country leave no doubt as to the Lithuanian high-office holders’ prior
acceptance of hosting a CIA detention site on their territory. Nor can there
be any doubt that they provided “cooperation and support” for the
“detention programme” and that, in appreciation, were offered and accepted
a financial reward, amounting to some redacted sum of USD million (see
paragraphs 554-557 above).
573. Furthermore, the experts, who in the course of their inquiries also
had the benefit of contact with various sources, including confidential ones,
unanimously and categorically stated that Lithuania not only ought to have
known but actually did know of the nature and purposes of the CIA
activities in the country.
Senator Marty stated that since the operation had been governed by the
“need-to-know” secrecy principle, only those few people who had
absolutely needed to know had known about it. As in other countries, there
had been persons at the highest level of the Lithuanian State who had had
certain knowledge of what had been going on but even those who had come
to know had not necessarily known all the details. Yet somebody had
allowed the CIA to move about freely and have access to premises where
they had been allowed to do what they had wanted without any control
whatsoever. He described the national authorities’ conduct as complicity
which had not been active; the national authorities had not participated in
the CIA interrogations (see paragraph 382 above).
Mr J.G.S. testified that the authorities of Lithuania had known about the
existence of the detention facility and that through the highest levels of their
government had approved and authorised its presence on their territory. In
his view, they certainly should have known the purpose which the facility
had served because its nature and purpose was part of a systematic practice,
which had already been implemented by the CIA across multiple other
countries and had been widely reported by the time the site in Lithuania had
become active. There had been different degrees of knowledge in different
sectors of Lithuania’s authorities. At the operational level the details had
been known to a very small number of trusted counterparts, primarily within
the secret services. He added that he was not aware of any single instance of
a CIA detention site having existed anywhere in the world without the
express knowledge and authorisation of the host authorities (see
paragraph 387 above).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
257
Mr Black stated that it had been clear from the 2014 US Senate
Committee Report that the Lithuanian officials had been aware of the CIA
programme operating on their territory. He added that, as he could say from
his accumulated knowledge of the CIA HVD Programme and close reading
of the 2014 US Senate Committee Report, some host country officials had
always known that there had been prisoners held in the facilities. That did
not imply that every single host country official had known but in
Lithuania’s case it was evident that at least some had known that the
prisoners had been held on their territory and they had known that they had
been receiving money to facilitate this (see paragraphs 392-393 above).
574. The Court, as in previous similar cases, does not consider that the
Lithuanian authorities necessarily knew the details of what exactly went on
inside the CIA secret facility or witnessed treatment or interrogations to
which the CIA prisoners were subjected in Lithuania. As in other countries
hosting clandestine prisons, the operation of the site was entirely in the
hands of the CIA and the interrogations were exclusively the CIA’s
responsibility (see paragraph 272 above; see also Al Nashiri v. Poland, cited
above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443).
575. However, in the Court’s view, even if the Lithuanian authorities did
not have, or could not have had, complete knowledge of the HVD
Programme, the facts available to them through their contacts and
cooperation with their CIA partners, taken together with extensive and
widely available information on torture, ill-treatment, abuse and harsh
interrogation measures inflicted on terrorist-suspects in US custody which
in 2002-2005 circulated in the public domain, including the Lithuanian
press (see paragraphs 565-568 above), enabled them to conjure up a
reasonably accurate image of the CIA’s activities and, more particularly, the
treatment to which the CIA was likely to have subjected their prisoners in
Lithuania.
In that regard the Court would reiterate that in Al Nashiri v. Poland and
Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003
the public sources reported practices resorted to, or tolerated by, the US
authorities that were manifestly contrary to the principles of the Convention.
All the more so did the authorities, in 2005-2006, have good reason to
believe that a person detained under the CIA rendition and secret detention
programme could be exposed to a serious risk of treatment contrary to those
principles on their territory.
It further observes that it is – as was the case in respect of Poland –
inconceivable that the rendition aircraft could have crossed the country’s
airspace, landed atand departed from its airports, or that the CIA could have
occupied the premises offered by the national authorities and transported
detainees there, without the State authorities being informed of or involved
in the preparation and execution of the HVD Programme on their territory.
Nor can it stand to reason that activities of such character and scale,
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possibly vital for the country’s military and political interests, could have
been undertaken on Lithuanian territory without the Lithuanian authorities’
knowledge and without the necessary authorisation and assistance being
given at the appropriate level of the State (see Al Nashiri v. Poland, cited
above, §§ 441-442 and Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 443-444).
576. The Court accordingly finds it established beyond reasonable doubt
that:
(a) the Lithuanian authorities knew of the nature and purposes of the
CIA’s activities on its territory at the material time;
(b) the Lithuanian authorities, by approving the hosting of the CIA
Detention Site Violet, enabling the CIA to use its airspace and airports and
to disguise the movements of rendition aircraft, providing logistics and
services, securing the premises for the CIA and transportation of the CIA
teams with detainees on land, cooperated in the preparation and execution of
the CIA rendition, secret detention and interrogation operations on its
territory; and
(c) given their knowledge of the nature and purposes of the CIA’s
activities on their territory and their involvement in the execution of that
programme, the Lithuanian authorities knew that, by enabling the CIA to
detain terrorist suspects – including the applicant – on their territory, they
were exposing them to a serious risk of treatment contrary to the
Convention.
III. LITHUANIA’S JURISDICTION AND RESPONSIBILITY UNDER
THE CONVENTION AND THE APPLICANT’S VICTIM STATUS
A. The parties’ submissions
577. The parties’ submissions regarding the Government’s objections
that Lithuania lacked jurisdiction within the meaning of Article 1 of the
Convention and, consequently, could not be responsible under the
Convention and the applicant’s victim status are set out above (see
paragraphs 398-409 above).
B. The Court’s assessment
578. The Court notes that the applicant’s complaints relate both to the
events that occurred on Lithuanian territory and to the consequences of his
transfer from Lithuania to other places where he was secretly detained (see
paragraphs 110-160 above).
In that regard, the Court will reiterate the relevant applicable principles.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
259
1. As regards jurisdiction
579. It follows from Article 1 of the Convention that Contracting States
must answer for any infringement of the rights and freedoms protected by
the Convention committed against individuals placed under their
“jurisdiction”.
The exercise of jurisdiction is a necessary condition for a Contracting
State to be able to be held responsible for acts or omissions attributable to it
which give rise to an allegation of the infringement of rights and freedoms
set forth in the Convention.
In that regard, the Court would refer to its case-law to the effect that the
concept of “jurisdiction” for the purposes of Article 1 of the Convention
must be considered to reflect the term’s meaning in public international law
(see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99
and 2 others, § 20, 14 May 2002; Banković and Others v. Belgium
and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII;
Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; and Ilaşcu
and Others, cited above, §§ 311-312).
From the standpoint of public international law, the words “within their
jurisdiction” in Article 1 of the Convention must be understood to mean that
a State’s jurisdictional competence is primarily territorial, but also that
jurisdiction is presumed to be exercised normally throughout the State’s
territory (see Ilaşcu and Others, cited above, § 312 with further references
to the Court’s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06,
§§ 149-150, ECHR 2015).
580. It must also be reiterated that, for the purposes of the Convention,
the sole issue of relevance is the State’s international responsibility,
irrespective of the national authority to which the breach of the Convention
in the domestic system is attributable (see, Assanidze, cited above, § 146,
with further references to the Court’s case-law).
2. As regards the State’s responsibility for an applicant’s treatment
and detention by foreign officials on its territory
581. In accordance with the Court’s settled case-law, the respondent
State must be regarded as responsible under the Convention for
internationally wrongful acts performed by foreign officials on its territory
with the acquiescence or connivance of its authorities (see Ilaşcu
and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri
v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited
above, § 449; and Nasr and Ghali, cited above, § 241).
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3. As regards the State’s responsibility for an applicant’s removal from
its territory
582. The Court has repeatedly held that the decision of a Contracting
State to remove a person – and, a fortiori, the actual removal itself – may
give rise to an issue under Article 3 where substantial grounds have been
shown for believing that the person in question would, if removed, face a
real risk of being subjected to treatment contrary to that provision in the
destination country (see Soering v. the United Kingdom, 7 July 1989,
§§ 90-91 and 113; Series A no. 161; Saadi v. Italy [GC], no. 37201/06,
§ 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom,
nos. 24027/07 and 4 others, § 168, 10 April 2012; El-Masri, cited above,
§§ 212-214, with further references; Al Nashiri v. Poland, cited above,
§ 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr
and Ghali, cited above, § 242).
Where it has been established that the sending State knew, or ought to
have known at the relevant time, that a person removed from its territory
was being subjected to “extraordinary rendition”, that is, “an extra-judicial
transfer of persons from one jurisdiction or State to another, for the
purposes of detention and interrogation outside the normal legal system,
where there was a real risk of torture or cruel, inhuman or degrading
treatment”, the possibility of a breach of Article 3 is particularly strong and
must be considered intrinsic in the transfer (see El-Masri, cited above,
§§ 218-221; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu
Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above,
§ 243).
583. Furthermore, a Contracting State would be in violation of Article 5
of the Convention if it removed, or enabled the removal, of an applicant to a
State where he or she was at real risk of a flagrant breach of that Article (see
Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 233 and 285,
ECHR 2012 (extracts); and El-Masri, cited above, § 239).
Again, that risk is inherent where an applicant has been subjected to
“extraordinary rendition”, which entails detention “outside the normal legal
system” and which, “by its deliberate circumvention of due process, is
anathema to the rule of law and the values protected by the Convention”
(see El-Masri, ibid.; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu
Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above,
§ 244).
584. While the establishment of the host State’s responsibility inevitably
involves an assessment of conditions in the destination country against the
standards set out in the Convention, there is no question of adjudicating on
or establishing the responsibility of the destination country, whether under
general international law, under the Convention or otherwise.
In so far as any responsibility under the Convention is or may be
incurred, it is responsibility incurred by the host Contracting State by reason
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
261
of its having taken action which has as a direct consequence the exposure of
an individual to proscribed ill-treatment or other alleged violations of the
Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90,
ECHR 2005-I, with further references; Othman (Abu Qatada), cited above,
§ 258; and El-Masri, cited above, §§ 212 and 239).
585. In determining whether substantial grounds have been shown for
believing that a real risk of the Convention violations exists, the Court will
assess the issue in the light of all the material placed before it or, if
necessary, material it has obtained proprio motu. It must examine the
foreseeable consequences of sending the applicant to the destination
country, bearing in mind the general situation there and his personal
circumstances.
The existence of the alleged risk must be assessed primarily with
reference to those facts which were known or ought to have been known to
the Contracting State at the time of the removal. However, where the
transfer has already taken place at the date of the Court’s examination, the
Court is not precluded from having regard to information which comes to
light subsequently (see Al-Saadoon and Mufdhi v. the United Kingdom,
no. 61498/08, § 125, ECHR 2010; and El-Masri, cited above, §§ 213-214,
with further references; Al Nashiri v. Poland, cited above, § 458; Husayn
(Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited
above, § 246).
4. Conclusion as to the Lithuanian Government’s preliminary
objections that Lithuania lacks jurisdiction and responsibility under
the Convention and as to the applicant’s victim status
586. Following an extensive and detailed analysis of evidence in the
present case, the Court has established conclusively and to the required
standard of proof that the Lithuanian authorities hosted CIA Detention Site
Violet from 17 or 18 February 2005 to 25 March 2006; that the applicant
was secretly detained there during that period; that the Lithuanian
authorities knew of the nature and purposes of the CIA’s activities in their
country and cooperated in the execution of the HVD Programme; and that
the Lithuanian authorities knew that, by enabling the CIA to detain terrorist
suspects – including the applicant – on their territory, they were exposing
them to a serious risk of treatment contrary to the Convention (see
paragraph 576 above).
The above findings suffice for the Court to conclude that the matters
complained of in the present case fall within the “jurisdiction” of Lithuania
within the meaning of Article 1 of the Convention and are capable of
engaging the respondent State’s responsibility under the Convention, and
that the applicant can be considered a “victim” for the purposes of
Article 34 of the Convention.
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Accordingly, the Government’s preliminary objections on these grounds
must be dismissed.
587. The Court will accordingly examine the applicant’s complaints and
the extent to which the events complained of are attributable to the
Lithuanian State in the light of the above principles of State responsibility
under the Convention, as deriving from its case-law (see also Al Nashiri
v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited
above, § 456).
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
588. The applicant’s complaints under Article 3 of the Convention
concerned both substantive and procedural aspects of this provision.
(1) As regards his alleged ill-treatment and detention in Lithuania, he
complained that the Lithuanian authorities had knowingly and intentionally
enabled the CIA to hold him in secret detention at the CIA site for over one
year. Lithuania had known about the CIA’s rendition programme on its
territory and of the real and immediate risk of torture to which high-value
detainees under this programme had been subjected. Lithuania had actively
agreed to establish a secret detention site and to facilitate the CIA
unhindered use of that site.
(2) Furthermore, the applicant alleged that Lithuania, by enabling the
CIA to transfer him from its territory to its other secret “black sites”, had
exposed him to further torture and ill-treatment. The Lithuanian authorities
had known, or should have known, of the real risk that he would continue to
be held in the same detention regime as that to which he had hitherto been
subjected.
(3) He also complained under Article 3 taken separately and in
conjunction with Article 13 of the Convention that the Lithuanian
authorities had been in breach of the procedural obligations under Article 3
and that he had been denied the right to a remedy under Article 13, since
they had failed to conduct an effective investigation into his allegations of
torture, ill-treatment and secret detention in a CIA-run detention facility on
Lithuanian territory and of being unlawfully transferred to places where he
had faced further torture and ill-treatment.
589. Article 3 of the Convention states:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
590. The Court will first examine the applicant’s complaint under the
procedural aspect of Article 3 about the lack of an effective and thorough
criminal investigation into his allegations of ill-treatment when in CIA
custody on Lithuanian territory (see El-Masri, cited above, § 181;
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
263
Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 459).
A. Procedural aspect of Article 3
1. The parties’ submissions
(a) The Government
591. In their written and oral pleadings, the Government submitted that
the pre-trial investigation in 2010-2011 had been prompt, independent,
thorough and transparent as required by Article 3. They also underlined that
the proceedings had been re-opened on 22 January 2015 immediately after
the publication of the 2014 US Senate Committee Report disclosing new
evidence concerning the CIA rendition operations.
592. As regards the proceedings conducted in 2010-2011, the
Government maintained that, despite the fact that the prosecution had not
been obliged to follow the CNSD’s recommendation to initiate a pre-trial
investigation, that investigation had been opened and carried out promptly
after the adoption of the Seimas Resolution. There could be no doubt as to
the independence of the investigation since, as set forth in the Constitution,
a prosecutor “shall be independent and obey only the law”.
The investigation had been thorough; it had not been limited to materials
available to the Seimas and replies to requests for information from the
relevant State institutions. In the course of the proceedings numerous
additional witnesses had been questioned, including all persons who had
been involved in, or had had knowledge of, the circumstances being
investigated, such as airport workers, the SSD officials, Customs and SBGS
officials, or other former and current State officials. However, since the
issues concerning the State or official secrets and classified information had
been involved in the investigation, it was not possible for the Government to
disclose the identities of all witnesses.
In that regard, the Government also explained that the succinct nature of
the Prosecutor’s decision to discontinue the pre-trial investigation did not
reflect the exact scope and content of the investigation because part of the
materials in the file constituted a State secret. This particular reason
precluded the Government from providing the Court with a more detailed
description of all procedural steps taken by the prosecution in the course of
the pre-trial investigation or more detailed explanations of the factual
circumstances that had been disclosed. Yet part of the material had been
declassified and had been submitted to the Court in order to assure the Court
that all relevant information had been gathered by the prosecution, rebutting
the hypothesis raised earlier in the course of the parliamentary inquiry.
593. As to the victim’s participation in the investigation, in the present
case no ground had been established to grant the applicant victim status in
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
the proceedings as not the slightest link had been established between the
applicant and the circumstances under examination. The Government noted
that under Article 28 of the Lithuanian Code of Criminal Procedure, a
person could be recognised as a victim of a criminal offence by a decision
of the prosecutor adopted on his own initiative.
As regards the letter of 20 September 2010 from Reprieve, requesting
investigation into “new and credible allegations that our client Mr Husayn
had been held in Lithuania sometime from 2004 to 2006”, the Government
noted that Reprieve had provided only some publicly available information
of a general nature, which had already been in the possession of the Seimas
and the prosecutor. Moreover, Reprieve had not asked for victim status to be
granted to the applicant under Article 28 of the Code of Criminal Procedure,
nor had it ever presented the applicant’s authorisation. It had been alleged in
Reprieve’s request that “recent information [had] come to us from a
confidential and extremely reliable unclassified source, confirming that
Mr Husayn [had been] held in a secret CIA prison in Lithuania”. The
Prosecutor General’s Office had asked it to provide all information leading
to the conclusion as to Mr Husayn’s transportation to/from Lithuania and
his alleged presence from Spring 2004 to 2006 September and also to
indicate the “confidential and extremely reliable source” referred to in the
request. However, no further information had been provided and no source
had been indicated.
594. Overall, the investigation had met the requirements under the
procedural limb of Article 3 of the Convention. It had made a serious
attempt to find out what happened and, relying on the entirety of
information obtained in the course of the pre-trial investigation, had
established beyond reasonable doubt that no persons, including the
applicant, had been brought into Lithuania or detained there. The
prosecution had acted actively and independently, gathering information of
a much more detailed nature compared with that available to the CNSD, the
mass media, NGOs and, to a certain extent, even international delegations
which had carried out their respective research into the circumstances of the
disputed events. Furthermore, “the State secret” concept had not precluded
the prosecuting authorities from undertaking an adequate investigation, as in
the course of the pre-trial investigation they had been given full access to all
classified information and, thereby enabling them to find out the nature and
purpose of the above-mentioned Projects Nos. 1 and 2, and to other
information which had been withheld from other persons. The information
at the prosecutor’s disposal had been much more extensive, and of a much
more exact and reliable nature, than the publicly available information on
which the applicant had relied. Also, in the Government’s view, public
scrutiny had been ensured, since part of the material had been declassified
in the context of the proceedings before the Court.
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
265
595. Lastly, as regards the proceedings reopened on 22 January 2015,
the Government submitted that they had progressed without delay.
However, the authorities had been confronted with numerous obstacles on
the part of other countries to which they had addressed requests for legal
assistance. They had sent six requests. Poland’s response had been received
after ten months. As at June 2016, they had not received any replies to the
requests that had been sent to Romania and Afghanistan a year or so earlier.
Morocco had refused the request. The US authorities, addressed twice,
replied that they could not provide the information requested.
(b) The applicant
596. The applicant maintained that Lithuania had failed to carry out an
investigation that satisfied its obligations under Article 3 of the Convention.
In his submission, the authorities had failed to meet any of the
Convention benchmarks of promptness, independence, thoroughness,
effectiveness or transparency. As regards promptness, it was eleven years
since the applicant had been detained on Lithuanian territory. It was eleven
years since media reports had revealed secret CIA detention in Eastern
European sites, and six years since reports had addressed Lithuanian
responsibility specifically and identified the applicant. When specific
reports had come out in relation to Lithuania in 2009, the Prosecutor had
waited half a year to open his investigation – and then opened it only after
the express prompting of the Parliamentary Committee.
Four years had then passed from the closure of that investigation until the
purported re-opening that had been announced in January 2015. During this
four year interim period, there had been consistent and pervasive calls for
the investigation to be re-opened, including from the applicant’s
representatives, from NGO’s such as AI, Human Rights Watch, Redress, the
Human Rights Monitoring Institute, the Constitution Project, from the head
of the Lithuanian Parliamentary Committee, from Senator Dick Marty, the
European Parliament, the Human Rights Council’s Special Rapporteur on
Terrorism, the UN Committee against Torture, and others.
The Prosecutor had been alerted to a growing body of evidence, not
encompassed in the original, cursory investigation, but had failed to follow
leads.
597. The lack of thoroughness and effectiveness of the investigation was
apparent in various ways. It was apparent from the limited scope of the
investigation. An investigation in a case of this type must look at crimes and
reflect the nature and gravity of the violations at the heart of the case; in this
case, torture, mistreatment of persons and forced disappearance, for
example. However, the public statements and information provided to the
Court had suggested a much narrower framing, limited previously to
possible “abuse of office” offences, more recently perhaps to the crime of
transfer. One of the implications of the focus on less grave crimes was the
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
suggestion that had been advanced by the Prosecutor when closing the
initial investigation, that the crimes in question might be subject to a statute
of limitations; and in the applicant’s view this would also entail a violation
of Convention obligations. A thorough investigation, he argued, should also
embrace the full range of those potentially responsible, directly and
indirectly. In this case there was nothing to suggest any intention or effort to
investigate and hold to account the full range of Lithuanian and foreign US
agents, at all levels, who had together engaged in this international criminal
conspiracy. Most notably, the lack of thoroughness and effectiveness was
seen in the failure of the Prosecutor’s Office to take basic investigative steps
that it had been called upon to take for many years.
598. The information from the prosecution file suggested, for example,
that there had not been an attempt to take testimony from key eye-witnesses,
including local inhabitants of the area, from foreign officials, agents,
contractors, psychologists, pilots crew or brokers, interrogators at the heart
of this case, several of whom had now publicly confessed to their
involvement in Abu Zubaydah’s rendition and torture, or from witnesses at
the highest levels of authority within the Lithuanian Government. There had
not been an investigation into key rendition flights including one of those
entering Lithuania from Morocco on the relevant dates.
599. Finally and critically, in the applicant’s submission, the
Convention’s requirements of transparency and the essential element of
public scrutiny had been flouted in this case. The Prosecutor’s Office had
refused to respond to or share information with the applicant, other victims,
or with the public, or to cooperate adequately with international inquiries.
The process had been shielded by an excessive and overreaching approach
to State secrecy.
The 2010 investigation had been closed on the basis that there was no
remaining doubt concerning detainees, though even the partially redacted
summary version of the evidence from the Prosecutor’s file made it clear
that the evidence supported the applicant’s case and certainly could not
plausibly justify closure. While there had been public statements on the
purported re-opening of the investigation, the State had notably provided no
information in its written submissions about any progress in that
investigation, despite being asked by the Court to do so explicitly and
despite being permitted to present a summary investigative file to the Court
on a confidential basis.
600. In sum, Lithuania had categorically failed to meet its Convention
obligations.
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267
2. Joint submissions by Amnesty International (AI) and the
International
investigation”
Commission
of
Jurists
(ICJ)
on
“effective
601. AI/ICJ, relying on the Court’s case-law, submitted that a duty to
investigate implied an obligation to act “with the required determination to
identify and prosecute those responsible”. Criminal proceedings were a
critical aspect of ensuring an effective remedy for gross violations of
Convention rights. They were the primary means through which the
victims’ right to the truth could be given effect, including in respect of
identifying the perpetrators. Although there was no right guaranteeing the
prosecution or conviction of a particular person, prosecuting authorities had
to, where the facts so warranted, take the necessary steps to bring those who
had committed serious human rights violations to justice”.
602. As regards the State parties’ involvement or complicity in
systematic human rights violations such as those that had occurred in the
CIA secret detention and rendition programme, failure to conduct timely an
effective investigations or prosecutions in appropriate cases would violate
the Convention rights, including rights under Articles 3 and 5 ECHR, and
would seriously undermine public confidence in Contracting Parties’
adherence to the rule of law throughout the Council of Europe.
603. Furthermore, the State’s duty to initiate and continue an
investigation could not be limited by the fact that alleged victims found
themselves in situations where it was impossible for them to produce
evidence of violations of their Convention rights. This was the case not only
regarding detention by public authorities, but also in cases of detention by
third parties. Where an individual was held within the exclusive control of
the authorities, and there was a prima facie indication that the State might
have been involved in the violations alleged, the burden of proof in
establishing the violations shifted on the State, since the events in issue
might lie wholly, or in large part, within the exclusive knowledge of the
authorities. These principles applied in cases of forced disappearances,
including those within the extraordinary rendition programme.
604. In order to be effective, an investigation had to be initiated
promptly once the matter had come to the attention of the authorities and
must be conducted with reasonable expedition. As regards the latter
requirement, the Court had, for instance, criticised situations where multiple
adjournments of an investigation had occurred.
The obligation to ensure an effective investigation would not be met
where significant delays were combined with a restricted scope of a
criminal investigation – for example, one which focused only on offences
which were subject to limitation periods under domestic law, when the
allegations related to offences that were not time-barred under international
law. Nor could any investigation lacking the necessary public scrutiny be
regarded as compatible with Article 3 of the Convention.
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
605. Lastly, the interveners, referring to El-Masri (cited above) and the
right to the truth, maintained that the right to an effective investigation,
under, inter alia, Articles 3 and 5, taken together with Article 13, entailed a
right to the truth concerning the violations of Convention rights perpetrated
in the context of the “secret detentions and renditions system”. This was so,
not only because of the scale and severity of the human rights violations
concerned, but also in the light of the widespread impunity for these
practices, and the suppression of information about them, which had
persisted in multiple national jurisdictions. Where renditions or secret
detentions had taken place with the co-operation of Contracting Parties to
the Convention, or in violation of those States’ positive obligations of
prevention, the positive obligations of those States required that they take
all reasonable measures open to them to disclose to victims, their families
and society as a whole information about the human rights violations that
those victims suffered within the renditions system.
3. The Court’s assessment
(a) Admissibility
606. The Court takes the view that the applicant’s complaint under the
procedural aspect of Article 3 raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Furthermore, the Court has already found that the Government’s
objection based on non-compliance with the rule of exhaustion of domestic
remedies and with the six-month rule should be joined to the merits of this
complaint (see paragraph 422 above). Consequently, it cannot be considered
that the complaint is manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. No other ground for declaring it inadmissible
having been established, the complaint must therefore be declared
admissible.
(b) Merits
(i) Applicable general principles deriving from the Court’s case-law
607. Where an individual raises an arguable claim that he has suffered
treatment infringing Article 3 at the hands of agents of the respondent State
or, likewise, as a result of acts performed by foreign officials with that
State’s acquiescence or connivance, that provision, read in conjunction with
the Contracting States’ general duty under Article 1 of the Convention to
“secure to everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there should be an
effective official investigation. Such investigation should be capable of
leading to the identification and – where appropriate – punishment of those
responsible. Otherwise, the general legal prohibition of torture and inhuman
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
269
and degrading treatment and punishment would, despite its fundamental
importance, be ineffective in practice and it would be possible in some cases
for agents of the State to abuse the rights of those within their control with
virtual impunity (see, among other examples, Assenov and Others
v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions
1998-VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454;
El-Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485;
Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Cestaro v. Italy,
no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262;
see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233,
ECHR 2016).
608. The investigation into serious allegations of ill-treatment must be
both prompt and thorough. That means that the authorities must act of their
own motion once the matter has come to their attention and must always
make a serious attempt to find out what happened and should not rely on
hasty or ill-founded conclusions to close their investigation or to use as the
basis of their decisions. They must take all reasonable steps available to
them to secure the evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence. Any deficiency in the
investigation which undermines its ability to establish the cause of injuries
or the identity of the persons responsible will risk falling foul of this
standard.
The investigation should be independent of the executive. Independence
of the investigation implies not only the absence of a hierarchical or
institutional connection, but also independence in practical terms.
Furthermore, the victim should be able to participate effectively in the
investigation in one form or another (see, El-Masri, cited above,
§§ 183-185; Al-Skeini and Others v. the United Kingdom [GC],
no. 55721/07, § 167; Al Nashiri v. Poland, cited above, § 486; and Husayn
(Abu Zubaydah) v. Poland, cited above, § 480).
609. Even if there is a strong public interest in maintaining the secrecy
of sources of information or material, in particular in cases involving the
fight against terrorism, it is essential that as much information as possible
about allegations and evidence should be disclosed to the parties in the
proceedings without compromising national security. Where full disclosure
is not possible, the difficulties that this causes should be counterbalanced in
such a way that a party can effectively defend its interests (see Al Nashiri
v. Poland, cited above, § 494-495; and Husayn (Abu Zubaydah) v. Poland,
cited above, § 488-489, both judgments with further references to the
Court’s case-law).
610. Furthermore, where allegations of serious human rights violations
are involved in the investigation, the right to the truth regarding the relevant
circumstances of the case does not belong solely to the victim of the crime
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
and his or her family but also to other victims of similar violations and the
general public, who have the right to know what has happened.
An adequate response by the authorities in investigating allegations of
serious human rights violations may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law and in
preventing any appearance of impunity, collusion in or tolerance of
unlawful acts. For the same reasons, there must be a sufficient element of
public scrutiny of the investigation or its results to secure accountability in
practice as well as in theory (see El-Masri, cited above, §§191-192;
Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 489, with further references to the Court’s
case-law).
(ii) Application of the above principles to the present case
611. The Court, having regard to the fact that the Prosecutor General’s
Office opened the pre-trial investigation within a few days after the Seimas
Resolution of 19 January 2010 endorsing the CNSD Findings and
recommendations (see paragraphs 174 and 179 above), does not consider
that the authorities failed to give a prompt response to the public allegations
suggesting Lithuania’s possible complicity in the CIA extraordinary
rendition programme. Nor can it be said that during the subsequent six
months the authorities failed to display procedural activity. From
10 February to 14 June 2010 the prosecutor took evidence from fifty-five
witnesses, including some high political post-holders, the SSD officers, the
SBGS, and the airport authorities and employees. Over that period
numerous requests for information were addressed to various bodies,
including the relevant ministries, airports, the aviation authorities, the
Customs Service and others. The prosecution also consulted classified
material of the parliamentary inquiry and carried out on-site inspections of
Project No. 1 and Project No. 2 (see paragraphs 181-190 above).
612. However, it does not appear that, after June 2010, any further
actions were taken, apart from responding to correspondence from
Reprieve, which had addressed the prosecutor in connection with the
suspicion that the applicant had been secretly detained in a CIA detention
facility in Lithuania.
The first letter, of 20 September 2010, in which Reprieve asked the
prosecution to investigate the matter, gave a fairly extensive description of
the applicant’s detention in other countries, before his alleged rendition to
Lithuania. It indicated the putative period of his detention, which was
situated between spring 2004 and September 2006 and matched the repeated
movements of the CIA-linked aircraft through Lithuania’s airspace, which
were the object both of the parliamentary inquiry and current investigation.
The prosecution replied that these circumstances had already been covered
by the pending investigation. No action was taken.
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In the second letter, of 18 November 2010, Reprieve asked the
prosecutor to attempt to interview the applicant under the bilateral
agreement on mutual legal assistance in criminal matters between the USA
and Lithuania and, in addition, made eight motions for taking evidence from
various sources, including the US CIA officials and Lithuanian officials
listed by name, eyewitnesses, forensic evidence, companies involved in
flights and many others. It also asked for information about the progress of
the investigation On 13 January 2011 the prosecutor refused the request
since Reprieve “was not party to the proceedings [with] the right to examine
the material of the pre-trial investigation”. None of the proposed actions
were taken. The next day the prosecutor discontinued the investigation,
finding that there had been no evidence demonstrating “illegal
transportation of anyone”, by the CIA, including of the applicant, into or out
of Lithuania (see paragraphs 191-195 above).
613. The Court observes that the Government have stated that the
prosecutor’s decision was based on the fact that Reprieve had not provided
any new evidence apart from the information already in the public domain
and available to the authorities. This, however, does not explain the lack of
any attempt to consider evidential motions which do not appear to have
been unreasonable or unrelated to the object of the investigation.
614. It is not the Court’s role to advise the domestic authorities about
which evidence is to be admitted and which is to be refused, but their
decisions in that respect are subject to the Court’s scrutiny for compliance
with the requirements of an “effective and thorough investigation”.
According to the Courts case-law, as stated above, the authorities must
“always make a serious attempt to find out what happened and should not
rely on hasty or ill-founded conclusions to close their investigation or to use
as the basis of their decisions” (see paragraph 608 above, with references to
the Court’s case-law).
615. In that regard, the Court cannot but note that the prosecutor had in
his possession personal details, including passports numbers, of the five US
citizens who arrived on the CIA plane N787WH at Palanga airport on
18 February 2005 (see paragraph 371 above). Also, despite the fact that the
case involved allegations of a large-scale rendition scheme operated by the
CIA and that it was clearly established in the investigation that the
CIA-linked aircraft “did arrive and did depart” from Lithuania at the
material time (see paragraph 198 above), the prosecutor apparently made no
effort to identify, and to obtain evidence from, US citizens who could have
been involved in the “partnership cooperation” with the SSD by means of
formal requests for legal assistance to the US authorities. In the light of the
material before the Court such formal requests were only made in the
proceedings that were re-opened in January 2015 (see paragraphs 209-210
and 595 above).
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616. The Court also takes note of concerns regarding the adequacy of
the investigation expressed in the 2011 CPT Report. In particular, the CPT
stated that, given that the investigation had related to a possible abuse of
power, “the question [arose] whether [it] ... [was] sufficiently wide in scope
to qualify as comprehensive”. When the CPT delegation raised the issue of
the scope of the investigation with the Prosecutor General’s Office, they
replied that “facts” were needed to launch a criminal investigation, not
“assumptions” (see paragraph 353 above).
617. After the investigation was discontinued on 14 January 2011, in
2011-2013 the Lithuanian prosecutors received repeated requests from
non-governmental organisations and appeals from the European Parliament
to resume the proceedings in order to consider newly emerging evidence
(see paragraphs 201-205 and 290-295 above). No response was given. Until
the publication of the 2014 US Senate Committee Report and receipt of the
detailed 2015 Reprieve Briefing – to which, according to Mr Black, the
prosecutor has not so far responded either – the authorities remained totally
passive (see paragraphs 206 and 395 above). Moreover, on the basis of the
Government’s summary description of the fresh investigation, ongoing
since 22 January 2015, it does not appear that any meaningful progress in
investigating Lithuania’s complicity in the CIA HVD Programme and
identifying the persons responsible has so far been achieved (see
paragraphs 206-211 above).
618. Nor does it seem that any information from the 2010-2011
investigation or the fresh proceedings regarding their conduct has been
disclosed to the public. The Government have argued that the 2010-2011
investigation was transparent and subject to public scrutiny since part of the
material was declassified in the context of the proceedings before the Court
(see paragraph 592 above). However, the Court notes that this material had
not been publicly accessible until the public hearing in the present case held
on 29 June 2016, at which the Government withdrew their request to apply
Rule 33 § 2 to all documents submitted by them, except to the extent
necessary to ensure the protection of personal data (see paragraphs 11
and 13 above). It further notes that both Reprieve and Amnesty International
were either denied any information about the progress and scope of the
investigation or refused access – even restricted – to the investigation file,
or had their requests to that effect left unanswered (see paragraphs 195
and 201-205 above).
Furthermore, as stated in the 2011 CPT Report, the CPT’s delegation
“did not receive the specific information it requested” about the
investigation. In that context, the CPT also expressed doubts as to whether
“all the information that could have been provided to [it] about the conduct
of the investigation ha[d] been forthcoming” and whether the investigation
was sufficiently thorough, “given the paucity of the information currently
available” (see § 72 of the Report cited in paragraph 353 above).
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
273
619. The Court would emphasise that the importance and gravity of the
issues involved require particularly intense public scrutiny of the
investigation. The Lithuanian public has a legitimate interest in being
informed of the criminal proceedings and their results. It therefore falls to
the national authorities to ensure that, without compromising national
security, a sufficient degree of public scrutiny is maintained in respect to the
investigation (see Al Nashiri v. Poland, cited above, § 497 and Husayn (Abu
Zubaydah) v. Poland, cited above, § 489).
620. The Court would further underline that the securing of proper
accountability of those responsible for enabling the CIA to run Detention
Site Violet on Lithuanian territory is conducive to maintaining confidence
in the adherence of the Lithuanian State’s institutions to the rule of law. The
applicant and the public have a right to know the truth regarding the
circumstances surrounding the extraordinary rendition operations in
Lithuania and his secret detention and to know what happened at the
material time. A victim who has made a credible allegation of being
subjected to ill-treatment in breach of Article 3 of the Convention has the
right to obtain an accurate account of the suffering endured and the role of
those responsible for his ordeal (see paragraph 610 above; see also
Association “21 December 1989” and Others v. Romania, nos. 33810/07
and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above,
§ 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487).
621. Having regard to the above deficiencies of the impugned
proceedings, the Court considers that Lithuania has failed to comply with
the requirements of an “effective and thorough” investigation for the
purposes of Article 3 of the Convention.
622. Accordingly, the Court dismisses the Government’s preliminary
objections of non-exhaustion of domestic remedies and non-compliance
with the six-month rule (see paragraphs 413-417 above) and finds that there
has been a violation of Article 3 of the Convention, in its procedural aspect.
B. Substantive aspect of Article 3
1. The parties’ submissions
(a) The Government
623. The Government submitted that, having regard to Lithuania’s lack
of jurisdiction as invoked above, they would refrain from making any
observations on the merits of the applicant’s complaint under the
substantive limb of Article 3 of the Convention.
(b) The applicant
624. The applicant submitted that Lithuania had known, or ought to have
known about the CIA’s secret detention and extraordinary rendition
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programme, the secret CIA prison in Lithuania, and the torture and cruel,
inhuman and degrading treatment to which the CIA had subjected
high-value detainees as part of this programme.
625. He therefore asked the Court to follow Husayn (Abu Zubaydah)
v. Poland (cited above), and find a violation of Article 3 of the Convention.
In his view, there was no doubt that the standard conditions of detention and
transfer to which he had been subjected, the nature of the interrogation
techniques having been used against him and the secrecy of his detention
itself amounted to torture and cruel, inhuman and degrading treatment. This
was confirmed by disclosures in the 2014 US Senate Committee Report,
which had clearly shown that the extent of the extreme brutality and cruelty
of the CIA HVD Programme had gone beyond what had been known when
the Court had adopted the above judgment.
626. In the applicant’s submission, the cumulative effect of the features
of his rendition and secret detention showed beyond reasonable doubt that
he was a victim of treatment prohibited by Article 3. In that regard, he
referred to the complete arbitrariness of the rendition programme, the
uncertainty as to his fate, which had been entirely in the hands of his captors
and abusers, and the deliberate manipulation of fear and disorientation,
which had been designed to and had in fact resulted in a long-term
psychological impact. Furthermore, the prolonged duration of the secret
incommunicado detention compounded its intensity and effect. The
applicant had been held: in secret, unacknowledged detention for a
prolonged period of several years, from the date of his arrest on 27 March
2002, at least until his transfer to the custody of the US Department of
Defence at the US Naval Base at Guantànamo Bay on 5 September 2006.
This period included over one year of secret detention in Lithuania.
627. Lithuania had been under a positive obligation under Article 3 to
protect him from torture and other forms of ill-treatment by the CIA on its
territory and to prevent his transfer from its territory to other CIA secret
detention facilities, which had exposed to him to further torture,
ill-treatment and abuse in CIA custody. However, the authorities, despite
the fact that at the relevant time they knew and ought to have known, that
under the HVD Programme CIA prisoners had been subjected to
interrogation methods and other practices manifestly incompatible with the
Convention, had failed to prevent his transfer to other secret CIA detention
sites elsewhere, thus exposing him to a continued and prolonged risk of
treatment contrary to Article 3 of the Convention.
2. The Court’s assessment
(a) Admissibility
628. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
275
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
(b) Merits
(i) Applicable general principles deriving from the Court’s case-law
629. Article 3 of the Convention enshrines one of the most fundamental
values of democratic societies. Unlike most of the substantive clauses of the
Convention, Article 3 makes no provision for exceptions and no derogation
from it is permissible under Article 15 § 2 even in time of war or other
public emergency threatening the life of the nation (see, among many other
examples, Soering, cited above, § 88; Selmouni, cited above, § 95; Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Ilaşcu and Others cited
above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02,
§ 375, ECHR 2005-III; El-Masri, cited above, § 195; see also Al-Adsani
v. the United Kingdom [GC], no. 35763/97, §§ 26-31, ECHR 2001-XI).
Even in the most difficult circumstances, such as the fight against
terrorism and organised crime, the Convention prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, irrespective of
the conduct of the person concerned (see Chahal v. the United Kingdom,
15 November 1996, § 79, Reports 1996-V; see Labita, cited above, § 119;
Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005-IV ; El-Masri,
cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu
Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above,
§ 280).
630. In order for ill-treatment to fall within the scope of Article 3 it must
attain a minimum level of severity. The assessment of this minimum
depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age and
state of health of the victim (see Ireland v. the United Kingdom, cited above,
§ 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI; and
Jalloh, cited above, § 67). Further factors include the purpose for which the
treatment was inflicted together with the intention or motivation behind it
(compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports
1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov
v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El-Masri, cited
above, § 196).
Treatment has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and caused
either actual bodily injury or intense physical and mental suffering, and also
“degrading” because it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them (see
Labita, cited above, § 120).
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In order to determine whether any particular form of ill-treatment should
be classified as torture, the Court must have regard to the distinction drawn
in Article 3 between this notion and that of inhuman or degrading treatment.
This distinction would appear to have been embodied in the Convention to
allow the special stigma of “torture” to attach only to deliberate inhuman
treatment causing very serious and cruel suffering (see Aksoy, cited above,
§ 62). In addition to the severity of the treatment, there is a purposive
element, as recognised in the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, which
came into force on 26 June 1987, which defines torture in terms of the
intentional infliction of severe pain or suffering with the aim, inter alia, of
obtaining information, inflicting punishment or intimidating (Article 1 of
the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93,
§ 85, ECHR 2000-VII; El-Masri, cited above, § 197; Al Nashiri v. Poland,
cited above, § 508; and Husayn (Abu Zubaydah) v. Poland, cited above,
§ 500).
631. Furthermore, a threat of conduct prohibited by Article 3, provided it
is sufficiently real and immediate, may fall foul of that provision. Thus, to
threaten an individual with torture may constitute at least inhuman treatment
(see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010; and
Husayn (Abu Zubaydah) v. Poland, cited above, § 501).
632. The obligation on the High Contracting Parties under Article 1 of
the Convention to secure to everyone within their jurisdiction the rights and
freedoms defined in the Convention, taken together with Article 3, requires
States to take measures designed to ensure that individuals within their
jurisdiction are not subjected to torture or inhuman or degrading treatment
or punishment, including such ill-treatment administered by private
individuals (see A. v. the United Kingdom, 23 September 1998, § 22,
Reports 1998-VI; and Z and Others v. the United Kingdom [GC],
no. 29392/95, § 73, ECHR 2001-V). The State’s responsibility may
therefore be engaged where the authorities fail to take reasonable steps to
avoid a risk of ill-treatment about which they knew or ought to have known
(see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III;
El-Masri, cited above, § 198; Al Nashiri v. Poland, cited above, § 509;
Husayn (Abu Zubaydah) v. Poland, cited above, § 502; and Nasr and Ghali,
cited above, § 283).
(ii) Application of the above principles to the present case
633. The Court has already found that the applicant’s assertions
concerning his secret detention in Lithuania from 17 or 18 February 2005 to
25 March 2006 and his transfer from Lithuania to another CIA “black site”
on the latter date have been proved before Court and that those facts are
established beyond reasonable doubt (see paragraph 548 above).
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277
It remains to be determined whether the treatment to which he was
subjected during his detention falls within the ambit of Article 3 of the
Convention and, if so, whether and to what extent it can be attributed to the
respondent State (see paragraph 587 above).
(α) Treatment to which the applicant was subjected at the relevant time
634. In the light of the material in the case file, as the Court has already
pointed out, it does not appear that at Detention Site Violet the applicant
was subjected to the EITs in connection with interrogations, although there
are indications that he must have been continually interrogated or
“debriefed” by the CIA during the entire period of his secret detention (see
paragraphs 550-552 above). In that regard, the Court also notes that on
27 March 2007, at the hearing before the Combatant Status Review Tribunal
in Guantánamo the applicant, after relating the ordeal to which he had been
subjected in CIA custody, stated that “after the second – or second – after
one complete year, two year, they start[ed] tell[ing] me the time for the
pray[ers] and slowly, slowly circumstances [had become] good”. However,
that statement must be read in the context of the treatment inflicted on him
previously and in the light of what had happened to him before. The
description of his plight given by the applicant at the above hearing and
records of his statements in the 2007 ICRC Report give a shocking account
of the particularly cruel treatment to which he had been subjected in CIA
custody, from the waterboarding, being slammed against the wall and kept
naked for days or months on end, through the confinement in a
coffin-shaped box, to sleep deprivation, prolonged stress positions, exposure
to cold temperature and food deprivation (see paragraphs 151-153 and 299
above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107
and 508).
The Court considers that the applicant’s experience in CIA custody prior
to his detention in Lithuania is an important factor to be taken into account
in its assessment of the severity of the treatment to which he was
subsequently subjected (ibid.).
635. The Court has established beyond reasonable doubt that during his
detention in Lithuania the applicant was kept – as any other CIA detainee –
under the regime of “standard conditions of confinement” laid down in the
DCI Confinement Guidelines. That regime included, as a matter of fixed,
predictable routine, blindfolding or hooding of the detainees, designed to
disorient them and keep from learning their location or the layout of the
detention facility; removal of hair upon arrival at the site; incommunicado,
solitary confinement; continuous noise of high and varying intensity played
at all times; continuous light such that each cell was illuminated to about the
same brightness as an office; and use of leg shackles in all aspects of
detainee management and movement (see paragraphs 54-56 and 552 above).
Conditions of confinement were an integral part of the CIA interrogation
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scheme and served the same purposes as interrogation measures, namely to
“dislocate psychologically” the detainee, to “maximise his feeling of
vulnerability and helplessness” and “reduce or eliminate his will to resist ...
efforts to obtain critical intelligence” (see paragraphs 46-53 above).
636. A complementary description of the applicant’s conditions of
detention throughout the entire period that he spent in CIA custody can also
be found in the 2007 ICRC Report. According to that description, based on
the applicant’s own account and on that of thirteen other high-value
detainees’ they “had no knowledge of where they were being held, no
contact with persons other than their interrogators or guards”; and “even the
guards were usually masked and, other than the absolute minimum, did not
communicate in any way with detainees”. None of the detainees “had any
real – let alone regular – contact with other persons detained, other than
occasionally for the purposes of inquiry when they were confronted with
another detainee”. They had “no access to news from the outside world,
apart from the later stages of their detention when some of them
occasionally received printouts of sports news from the Internet and one
reported receiving newspapers”. The situation was further exacerbated by
other aspects of the detention regime, such as deprivation of access to the
open air and exercise, lack of appropriate hygiene facilities and deprivation
of basic items in pursuance of interrogations (see paragraph 299 above).
637. Referring to the general situation in the CIA secret prisons, the
2014 US Senate Committee Report states that “the conditions of
confinement for CIA detainees were harsher than [those] the CIA
represented to the policymakers and others” and describes them as being
“poor” and “especially bleak early in the programme” (see paragraph 84
above). It further states that in respect of the conditions of detention the DCI
Confinement Guidelines of 28 January 2003 set forth minimal standards and
required only that the facility be sufficient to meet “basic health needs”.
That, according to the report, in practice meant that a facility in which
detainees were kept shackled in complete darkness and isolation, with a
bucket for a human waste and without heating during the winter months met
that standard (see paragraphs 54-56 and 77 above).
638. As regards the impact of the regime on the CIA detainees, the 2014
US Senate Committee Report states that “multiple CIA detainees who were
subjected to the CIA’s enhanced interrogation techniques and extended
isolation exhibited psychological and behavioural issues, including
hallucinations, paranoia, insomnia and attempts at self-harm and
self-mutilation” and that “multiple psychologists identified the lack of
human contact experienced by detainees as a cause of psychiatric problems”
(see paragraph 77 above). In the CIA’s declassified documents, adverse
effects of extreme isolation to which HVDs were subjected have been
recognised as imposing a “psychological toll” and capable of altering “the
detainee’s ability to interact with others” (see paragraph 56 above).
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279
639. For the purposes of its ruling the Court does not find it necessary to
analyse each and every aspect of the applicant’s treatment in detention, the
physical conditions in which he was detained in Lithuania or the conditions
in which he was transferred to and out of Lithuania. While the intensity of
the measures inflicted on him by the CIA might have varied, the
predictability of the CIA’s regime of confinement and treatment routinely
applied to the high-value detainees give sufficient grounds for the Court to
conclude that the above described standard measures were used in respect of
the applicant in Lithuania and likewise elsewhere, following his transfer
from Lithuania, as an integral part of the HVD Programme (see also
Al Nashiri v. Poland, cited above, §§ 514-515; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 510).
640. Considering all the elements, the Court finds that during his
detention in Lithuania the applicant was subjected to an extremely harsh
detention regime including a virtually complete sensory isolation from the
outside world and suffered from permanent emotional and psychological
distress and anxiety also caused by the past experience of torture and cruel
treatment in the CIA’s hands and fear of his future fate. Even though at that
time he had apparently not been subjected to interrogations with the use of
the harshest methods, the applicant – having beforehand experienced the
most brutal torture, (see Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 86-89, 99-102, 401 and 416-417; see also paragraphs 149-152 and 296
above) – inevitably faced the constant fear that, if he failed to “comply”, the
previous cruel treatment would at any given time be inflicted on him again.
Thus, Article 3 of the Convention does not refer exclusively to the infliction
of physical pain but also to that of mental suffering, which is caused by
creating a state of anguish and stress by means other than bodily assault (see
El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited
above, §§ 509-510).
Consequently, having regard to the regime of detention to which the
applicant must have been subjected in Lithuania and its cumulative effects
on him, the Court finds that the treatment complained of is to be
characterised as having involved intense physical and mental suffering
falling within the notion of “inhuman treatment” under Article 3 of the
Convention (see paragraphs 630-631 above, with references to the Court’s
case-law).
(β) Court’s conclusion as to Lithuania’s responsibility
641. The Court has already found that the Lithuanian authorities knew of
the nature and purposes of the CIA’s activities on its territory at the material
time and cooperated in the preparation and execution of the CIA
extraordinary rendition, secret detention and interrogation operations on
Lithuanian territory. It has also found that, given their knowledge and
involvement in the execution of the HVD Programme the Lithuanian
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
authorities knew that, by enabling the CIA to detain terrorist suspects –
including the applicant – on Lithuania’s territory, they were exposing them
to a serious risk of treatment contrary to the Convention (see paragraph 576
above).
642. It is true that in the assessment of the experts – which the Court has
accepted – the Lithuanian authorities did not know the details of what
exactly happened inside Detention Site Violet or witnessed the treatment to
which the CIA’s detainees were subjected. The running of the detention
facility was entirely in the hands of and controlled by the CIA. It was the
CIA personnel who were responsible for the physical conditions of
confinement, interrogations, debriefings, ill-treatment and inflicting of
torture on detainees (see paragraphs 571-575 above).
However, under Article 1 of the Convention, taken together with
Article 3, Lithuania was required to take measures designed to ensure that
individuals within its jurisdiction were not subjected to torture or inhuman
or degrading treatment or punishment, including ill-treatment administered
by private individuals (see paragraph 632 above).
Notwithstanding the above Convention obligation, the Lithuanian
authorities, for all practical purposes, facilitated the whole process of the
operation of the HVD Programme on their territory, created the conditions
for it to happen and made no attempt to prevent it from occurring. As held
above, on the basis of their own knowledge of the CIA activities deriving
from Lithuania’s complicity in the HVD Programme and from publicly
accessible information on treatment applied in the context of the “war on
terror” to terrorist-suspects in US custody the authorities – even if they did
not see or participate in the specific acts of ill-treatment and abuse endured
by the applicant and other HVDs – must have been aware of the serious risk
of treatment contrary to Article 3 occurring in the CIA detention facility on
Lithuanian territory.
Accordingly,
the
Lithuanian
authorities,
on
account
of
their
“acquiescence and connivance” in the HVD Programme must be regarded
as responsible for the violation of the applicant’s rights under Article 3 of
the Convention committed on their territory (see paragraph 592; see also
El-Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above,
§ 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512).
643. Furthermore, the Lithuanian authorities were aware that the transfer
of the applicant to and from their territory was effected by means of
“extraordinary rendition”, that is, “an extra-judicial transfer of persons from
one jurisdiction or State to another, for the purposes of detention and
interrogation outside the normal legal system, where there was a real risk of
torture or cruel, inhuman or degrading treatment” (see El-Masri, cited
above, § 221; Al Nashiri v. Poland, cited above, § 518; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 513).
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281
In these circumstances, the possibility of a breach of Article 3 was
particularly strong and should have been considered intrinsic in the transfer
(see paragraphs 579-580 above). Consequently, by enabling the CIA to
transfer the applicant out of Lithuania to another detention facility, the
authorities exposed him to a foreseeable serious risk of further ill-treatment
and conditions of detention in breach of Article 3 of the Convention.
644. There has accordingly been a violation of Article 3 of the
Convention, in its substantive aspect.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
645. The applicant complained that Lithuania had enabled the CIA to
hold him on its territory in secret, unacknowledged detention, which had
been imposed and implemented outside any legal procedures and designed
to ensure the complete denial of any safeguards contained in Article 5 of the
Convention. In addition, by enabling the CIA to transfer him from
Lithuanian territory to other secret CIA detention facilities elsewhere, it had
exposed him to a real and serious of risk further undisclosed detention.
He alleged a breach of Article 5 of the Convention, which reads as
follows:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful
order of a court or in order to secure the fulfilment of any obligation prescribed by
law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.
3. Everyone
arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled to trial within
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a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation.”
A. The parties’ submissions
1. The Government
646. The Government reiterated their position that Lithuania lacked
responsibility under the Convention and refrained from making any
observations on the admissibility and merits of this complaint.
2. The applicant
647. The applicant, relying on El-Masri, Al Nashiri v. Poland and
Husayn (Abu Zubaydah) v. Poland (all cited above), submitted that his
rendition and secret detention had constituted arbitrary deprivation of
liberty, defined by the Court as “anathema to the rule of law and the values
protected by the Convention”. Accordingly, it had not been “in accordance
with a procedure prescribed by law” and had, therefore, been in manifest
violation of Article 5 § 1.
648. In the applicant’s submission, Lithuania’s acts and omissions in
relation to the CIA HVD Programme as applied to the applicant on
Lithuanian territory had also amounted to a breach of its positive obligations
under Article 5. Thus, where persons directly responsible for deprivation of
liberty of an individual were not the State authorities, but private persons, or
another State’s authorities, the State’s responsibility would be engaged
where it had failed to meet its positive duty to protect those within its
territory and jurisdiction from arbitrary detention. The positive obligation to
protect included an obligation to prevent deprivation of liberty of which the
authorities had known or ought to have known, including by ensuring
access to counsel and to judicial supervision and to regularly inspect places
of confinement to ensure that detention was justified and that the safeguards
enshrined in Article 5 had been provided.
649. Not only had Lithuania failed to comply with its positive
obligations, it had also intentionally collaborated with the CIA to ensure
that it could operate its HVD Programme on Lithuanian territory, outside
the oversight or interference of any judicial body or institution. It had
facilitated the operation of the CIA “black site” and the secrecy of that
programme.
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The CIA secret prison could not have operated on Lithuanian territory
without the support and assistance of the State authorities.
650. After being transferred out of Lithuania the applicant had continued
to be subjected to CIA secret detention elsewhere, ultimately having been
transferred to Guantánamo Bay, where he was currently being held. The
Lithuanian authorities knew or ought to have known of the real and
substantial risk that he would continue to be held under essentially the same
regime of detention as that to which he had hitherto been subjected. At the
time of his transfer, information about the treatment of detainees at
Guantánamo Bay had been a matter of common knowledge.
In view of the foregoing, the applicant asked the Court to find a violation
of Article 5 of the Convention.
B. The Court’s assessment
1. Admissibility
651. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) Applicable general principles deriving from the Court’s case-law
652. The guarantees contained in Article 5 are of fundamental
importance for securing the right of individuals in a democracy to be free
from arbitrary detention at the hands of the authorities. It is for that reason
that the Court has repeatedly stressed in its case-law that any deprivation of
liberty must not only have been effected in conformity with the substantive
and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from
arbitrariness (see Chahal, cited above, § 118 and El-Masri, cited above,
§ 230). This insistence on the protection of the individual against any abuse
of power is illustrated by the fact that Article 5 § 1 circumscribes the
circumstances in which individuals may be lawfully deprived of their
liberty, it being stressed that these circumstances must be given a narrow
interpretation having regard to the fact that they constitute exceptions to a
most basic guarantee of individual freedom (see Quinn v. France, 22 March
1995, § 42, Series A no. 311; and El-Masri, cited above, § 230).
653. It must also be stressed that the authors of the Convention
reinforced the individual’s protection against arbitrary deprivation of his or
her liberty by guaranteeing a corpus of substantive rights which are intended
to minimise the risks of arbitrariness, by allowing the act of deprivation of
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liberty to be amenable to independent judicial scrutiny and by securing the
accountability of the authorities for that act. The requirements of Article 5
§§ 3 and 4, with their emphasis on promptness and judicial supervision,
assume particular importance in this context. Prompt judicial intervention
may lead to the detection and prevention of life-threatening measures or
serious ill-treatment which violate the fundamental guarantees contained in
Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at
stake is both the protection of the physical liberty of individuals and their
personal security in a context which, in the absence of safeguards, could
result in a subversion of the rule of law and place detainees beyond the
reach of the most rudimentary forms of legal protection (see El-Masri, cited
above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu
Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above,
§ 297).
654. Although the investigation of terrorist offences undoubtedly
presents the authorities with special problems, that does not mean that the
authorities have carte blanche under Article 5 to arrest suspects and detain
them in police custody, free from effective control by the domestic courts
and, in the final instance, by the Convention’s supervisory institutions,
whenever they consider that there has been a terrorist offence (see Aksoy,
cited above, § 78; and El-Masri, cited above, § 232).
The Court emphasises in this connection that the unacknowledged
detention of an individual is a complete negation of these guarantees and a
most grave violation of Article 5. Having assumed control over an
individual, the authorities have a duty to account for his or her whereabouts.
For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen since (see Kurt
v. Turkey, 25 May 1998, §§ 123-124, Reports 1998-III; and El-Masri, cited
above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn
(Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited
above, § 298).
(b) Application of the above principles to the present case
655. In the previous cases concerning similar allegations of a breach of
Article 5 arising from secret detention under the CIA HVD Programme in
other European countries the Court found that the respondent States’
responsibility was engaged and that they were in violation of that provision
on account of their complicity in that programme and cooperation with the
CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above,
§§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526;
and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any
reason to hold otherwise in the present case.
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285
656. As the Court has held in Al Nashiri v. Poland (cited above, § 530)
and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention
of terrorist suspects was a fundamental feature of the CIA rendition
programme. The rationale behind the programme was specifically to remove
those persons from any legal protection against torture and enforced
disappearance and to strip them of any safeguards afforded by both the US
Constitution and international law against arbitrary detention, to mention
only the right to be brought before a judge and be tried within a reasonable
time or the habeas corpus guarantees. To this end, the whole scheme had to
operate outside the jurisdiction of the US courts and in conditions securing
its absolute secrecy, which required setting up, in cooperation with the host
countries, overseas detention facilities (see also paragraphs 22-23, 26-58
and 74-87 above).
The rendition operations largely depended on the cooperation, assistance
and active involvement of the countries which put at the USA’s disposal
their airspace, airports for the landing of aircraft transporting CIA prisoners,
and facilities in which the prisoners could be securely detained and
interrogated, thus ensuring the secrecy and smooth operation of the HVD
Programme. While, as noted above, the interrogations of captured terrorist
suspects was the CIA’s exclusive responsibility and the local authorities
were not to be involved, the cooperation and various forms of assistance by
those authorities, such as the customising of the premises for the CIA’s
needs or the provision of security and logistics, constituted the necessary
condition for the effective operation of the CIA secret detention facilities
(see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah)
v. Poland, cited above, § 524).
657. In respect of the applicant’s complaint under the substantive aspect
of Article 3 the Court has already found that the Lithuanian authorities were
aware that he had been transferred from their territory by means of
“extraordinary rendition” and that by enabling the CIA to transfer the
applicant to its other secret detention facilities, exposed him to a foreseeable
serious risk of further ill-treatment and conditions of detention in breach of
Article 3 of the Convention (see paragraph 643 above). These conclusions
are likewise valid in the context of the applicant’s complaint under
Article 5. In consequence, Lithuania’s responsibility under the Convention
is engaged in respect of both the applicant’s secret detention on its territory
and his transfer from Lithuania to another CIA detention site.
658. There has accordingly been a violation of Article 5 of the
Convention.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
659. The applicant further complained that Lithuania had violated his
rights under Article 8 by enabling the CIA to ill-treat him, to subject him to
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various forms of physical and mental abuse, to detain him incommunicado
on its territory and to deprive him of any contact with his family or the
outside world.
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The Government
660. The Government restated their position that Lithuania lacked
responsibility under the Convention and refrained from making any
observations on the admissibility and merits of the complaint.
2. The applicant
661. The applicant submitted that under Article 8 of the Convention, the
right to respect for private life covered the physical, psychological and
moral integrity of the person, including, crucially, the mental health of an
individual.
The secret incommunicado detention had completely isolated him and
removed his ability to interact with the outside world. The physical and
psychological abuse to which he had been subjected in CIA custody
constituted a serious breach of the right to the physical and psychological
integrity of the person, which were integral aspects of Article 8.
The absolute ban on contact with his family members or with the outside
world had amounted to an interference with his private and family life, and
with his correspondence. Secret detention, he added, being designed to
remove the person from all contact with and support from the outside world,
was the antithesis of the letter and spirit of Article 8 of the Convention.
662. The interference with his rights under Article 8 rights had had no
legal basis and had not been “in accordance with the law”, whether
Lithuanian or international. It had specifically pursued aims antithetical to
the Convention, as it had been aimed at enhancing his vulnerability and
removing him from the protection of the law, in order to achieve the
all-consuming end of unfettered intelligence gathering. It had not pursued
any of the legitimate aims listed in paragraph 2 of Article 8, and could not
be considered “necessary” or proportionate for the purposes of that
provision.
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B. The Court’s assessment
1. Admissibility
663. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
664. The notion of “private life” is a broad one and is not susceptible to
exhaustive definition; it may, depending on the circumstances, cover the
moral and physical integrity of the person. These aspects of the concept
extend to situations of deprivation of liberty (see El-Masri, cited above,
§ 248, with further references to the Court’s case-law; Al Nashiri v. Poland,
cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above,
§ 532).
Article 8 also protects a right to personal development, including the
right to establish and develop relationships with other human beings and the
outside world. A person should not be treated in a way that causes a loss of
dignity, as “the very essence of the Convention is respect for human dignity
and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61
and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members
of a family of each other’s company constitutes a fundamental element of
family. In that context, the Court would also reiterate that an essential object
of Article 8 is to protect the individual against arbitrary interference by the
public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland,
cited above, §538; and Husayn (Abu Zubaydah) v. Poland, cited above,
§ 532).
665. Having regard to its conclusions concerning the respondent State’s
responsibility under Articles 3 and 5 of the Convention (see paragraphs 643
and 657 above), the Court is of the view that Lithuania’s actions and
omissions in respect of the applicant’s detention and transfer likewise
engaged its responsibility under Article 8 of the Convention. Considering
that the alleged interference with the applicant’s right to respect for his
private and family life occurred in the context of the imposition of
fundamentally unlawful, undisclosed detention, it must be regarded as not
“in accordance with the law” and as inherently lacking any conceivable
justification under paragraph 2 of that Article (see El-Masri, cited above,
§ 249; Husayn (Abu Zubaydah) v. Poland, cited above, § 533; and
Al Nashiri v. Poland, cited above, § 539).
666. There has accordingly been a violation of Article 8 of the
Convention.
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VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION
WITH ARTICLE 3 OF THE CONVENTION
667. The applicant complained that Lithuania had been in breach of
Article 13 of the Convention, taken separately and in conjunction with
Article 3, on account of having failed to carry out an effective, prompt and
thorough investigation into his allegations of serious violations of the
Convention.
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
668. The parties essentially reiterated their observations concerning the
procedural aspect of Article 3 of the Convention (see paragraphs 592-600
above).
669. The Government maintained that that the pre-trial investigation had
been thorough and effective and had, therefore, met the requirements of an
“effective remedy” for the purposes of Article 13 of the Convention.
670. The applicant disagreed and said that the investigation had been
superficial and that he had not been able to participate effectively in the
proceedings.
B. The Court’s assessment
1. Admissibility
671. The Court notes that this complaint is linked to the complaint under
the procedural aspect of Article 3, which has been found admissible (see
paragraph 606 above). It must likewise be declared admissible.
2. Merits
(a) Applicable general principles deriving from the Court’s case-law
672. Article 13 guarantees the availability at national level of a remedy
to enforce the substance of the Convention rights and freedoms in whatever
form they might happen to be secured in the domestic legal order. The effect
of this Article is thus to require the provision of a domestic remedy allowing
the competent national authority both to deal with the substance of the
relevant Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in which
they conform to their obligations under this provision. The scope of the
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289
obligation under Article 13 varies depending on the nature of the applicant’s
complaint under the Convention. Nevertheless, the remedy required by
Article 13 must be “effective” in practice as well as in law, in particular in
the sense that its exercise must not be unjustifiably hindered by the acts or
omissions of the authorities of the respondent State (see, among other
authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports 1998-I; and
Mahmut Kaya, cited above, § 124).
673. Where an individual has an arguable claim that he has been
ill-treated by agents of the State, the notion of an “effective remedy” entails,
in addition to the payment of compensation where appropriate, a procedure
enabling a thorough and effective investigation capable of leading to the
identification and punishment of those responsible and including effective
access for the complainant to the investigatory procedure (see Anguelova
v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002 IV; Assenov and
Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and
El-Masri, cited above, § 255).
674. The requirements of Article 13 are broader than a Contracting
State’s obligation under Articles 3 and 5 to conduct an effective
investigation into the disappearance of a person who has been shown to be
under their control and for whose welfare they are accordingly responsible
(see, El-Masri, cited above, § 255, with further references to the Court’s
case-law).
675. Given the irreversible nature of the harm that might occur if the risk
of ill-treatment materialised and the importance the Court attaches to
Article 3, the notion of an effective remedy under Article 13 requires
independent and rigorous scrutiny of the claim of, or on behalf of, the
individual concerned that there exist substantial grounds for fearing a real
risk of treatment contrary to Article 3. This scrutiny must be carried out
without regard to what the person may have done to warrant his expulsion
or to any perceived threat to the national security of the State from which
the person is to be removed (see Chahal, cited above, § 151 and El-Masri,
cited above, § 257; see also Al Nashiri v. Poland, cited above, § 549; and
Husayn (Abu Zubaydah) v. Poland, cited above, § 543).
(b) Application of the above principles to the present case
676. The Court has already concluded that the respondent State is
responsible for violations of the applicant’s rights under Articles 3, 5 and 8
of the Convention (see paragraphs 643-644, 657-658 and 665-666 above).
The complaints under these Articles are therefore “arguable” for the
purposes of Article 13 and the applicant should accordingly have been able
to avail himself of effective practical remedies capable of leading to the
identification and punishment of those responsible and to an award of
compensation, as required by that provision (see paragraph 673 above; see
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550;
and Husayn (Abu Zubaydah) v. Poland, cited above, § 544).
For the reasons set out in detail above, the Court has found that the
criminal investigation in Lithuania fell short of the standards of the
“thorough and effective investigation” that should have been carried out in
accordance with Article 3 (see paragraph 621 above). In these
circumstances, none of the remedies relied on by the Government (see
paragraphs 413-416 above), whether civil or criminal, would have been
“effective” in practice. For the reasons that prompted the Court to dismiss
the Government’s preliminary objection of non-exhaustion of domestic
remedies (see paragraph 622 above), the Court must also find that the
requirements of Article 13 of the Convention were not satisfied in the
present case and that the applicant did not have available to him in
Lithuania an “effective remedy” to ventilate his claims of a violation of
Articles 3, 5 and 8 of the Convention.
677. Consequently, there has been a violation of Article 13, taken in
conjunction with Article 3 of the Convention.
VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
678. In addition to asking the Court to award him just satisfaction for
non-pecuniary damage and legal costs under Article 41 of the Convention
(see paragraph 686 below), the applicant sought the Court’s ruling
indicating that the Lithuanian Government take certain specific individual
measures in execution of the judgment. That request was formulated as
follows:
(a) Lithuania should carry out an effective, thorough and independent
investigation to provide a full account of the applicant’s rendition into and
out of Lithuania and his treatment while there. The investigation should
include guarantees of independence and transparency, and victim
participation, in line with the State’s obligations. It should pursue
vigorously the investigation of past crimes, including by taking all possible
measures to secure information and cooperation from the United States and
conducting a rigorous forensic investigation. The investigation should lead
to a full public account of Lithuanian involvement in the rendition
programme.
(b) Those persons who were believed, upon proper investigation, to be
responsible for crimes committed against the applicant on Lithuanian
territory should be subject to prosecution and appropriate punishment in
accordance with the gravity of the crimes; that the State should clarify that
there could be no legal impediments to accountability for the crimes in
question under Lithuanian law.
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291
(c) The Lithuanian State should formally recognise the violations of the
applicant’s rights and acknowledge its wrongdoing and responsibility for
those violations, and its contribution to his current circumstances; the State
should provide suitable guarantees of non-repetition to ensure that
violations committed against the applicant would not be repeated in the
future and that its cooperation would be consistent with its human rights
obligations under the Convention.
(d) Lithuania should secure, through diplomatic or other means, the
cooperation and assistance of the United States Government in order to
establish the full and precise details of the applicant’s treatment at the hands
of the CIA, and it should make such representations and interventions,
individually or collectively, as were necessary to bring an end to the on-
going violations of his rights.
679. The Court considers it appropriate to deal with the applicant’s
request under Article 46 of the Convention which, in so far as relevant,
states:
“1. The High Contracting Parties undertake to abide by the final judgment of the
Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.
...”
680. The present case concerns the removal of an applicant from the
territory of the respondent State by means of extraordinary rendition. The
general principles deriving from the Court’s case-law under Article 46 as to
when, in such a situation, the Court may be led to indicate to the State
concerned the adoption of individual measures, including the taking of “all
possible steps” to obtain the appropriate diplomatic assurances from the
destination State, have been summarised in Al Nashiri v. Poland (cited
above, §§ 586-588, with further references to the Court’s case-law, in
particular to Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209,
ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202,
ECHR 2004-II; Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-
254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited
above, § 170).
681. As regards possible representations to the US authorities by the
respondent State, as requested by the applicant (see paragraph 678 (d) in
fine above), the Court would recall its finding that, by enabling the transfer
of the applicant to another CIA detention site, the Lithuanian authorities
exposed him to a foreseeable risk of continued secret, incommunicado and
otherwise arbitrary detention, liable, in his case, to continue for the rest of
his life, in breach of Article 5 of the Convention (see paragraphs 655-657
above; see also paragraphs 80 and 161-164 above) as well as to further
ill-treatment and conditions of detention, in breach of Article 3 (see
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ABU ZUBAYDAH v. LITHUANIA JUDGMENT
paragraphs 641-643 above). The Court is mindful of the fact that the
Lithuanian authorities already sought assistance and judicial cooperation
from the US authorities in the context of the domestic criminal investigation
(see paragraph 210 above). However, in the opinion of the Court, the treaty
obligation of Lithuania under Article 46 of the Convention to take the
necessary individual measures to redress as far as possible the violation
found by the Court, require that the Lithuanian authorities attempt to make
further representations to the US authorities with a view to removing or, at
the very least seeking to limit, as far as possible, the effects of the
Convention violations suffered by the applicant.
682. In the context of individual measures to be adopted by the
respondent State, the applicant also contended that the Lithuanian
authorities were obliged to carry out an effective, thorough and independent
investigation to provide a full account of his rendition to and from Lithuania
and of his treatment in Lithuania and to ensure the punishment of those
responsible (see paragraph 678 (a) and (b) above).
In this connection, it can be inferred from the Court’s case-law that the
obligation of a Contracting State to conduct an effective investigation under
Article 3, as under Article 2, of the Convention persists as long as such an
investigation remains feasible but has not been carried out or has not met
the Convention standards (see, for instance, Association “21 December
1989” and Others, cited above, § 202; Benzer and Others v. Turkey,
no. 23502/06, §§ 218-219, 12 November 2013; see also, mutatis mutandis,
Jeronovičs v. Latvia GC, no. 44898/10, §§ 107 and 118, 5 July 2016). An
ongoing failure to provide the requisite investigation will be regarded as a
continuing violation of that provision (see, mutatis mutandis, Cyprus
v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited
above, §§ 214 and 230).
683. The Court considers that, having regard in particular to the nature
of the procedural violation of Article 3 found in the present case, the
obligation incumbent on Lithuania under Article 46 inevitably requires that
all necessary steps to reactivate the still pending criminal investigation be
taken without delay. Thereafter, in accordance with the applicable
Convention principles (see paragraphs 607-610 above, with references to
the Court’s case-law), the criminal investigation should be brought to a
close as soon as possible, once, in so far as this proves feasible, the
circumstances and conditions under which the applicant was brought into
Lithuania, treated in Lithuania and thereafter removed from Lithuania have
been elucidated further, so as to enable the identification and, where
appropriate, punishment of those responsible. The Court notes that on the
basis of the elements in the case file, there appear to be no insurmountable
practical obstacles to the hitherto lacking effective investigation being
carried out in this manner (see, mutatis mutandis, Abuyeva and Others
v. Russia, no. 27065/05, §§ 240-241, 2 December 2010). It is not, however,
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
293
for the Court to address to the respondent State detailed, prescriptive
injunctions of the kind requested by the applicant. It falls to the Committee
of Ministers, acting under Article 46 of the Convention, to address the issue
of what – in practical terms – may be required of the respondent
Government by way of compliance (see, mutatis mutandis, ibid., § 243, and
Al Nashiri v. Poland, cited above, § 586, with further references to the
Court’s case-law).
684. For the remainder, the Court is satisfied that the issues raised by the
applicant in his requests for specific measures are adequately addressed by
its findings of violations of the Convention.
B. Article 41 of the Convention
685. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
1. Damage
686. The applicant asked the Court to award him 150,000 euros (EUR)
for non-pecuniary damage. He submitted that the Convention violations
which he had sustained had caused significant harm to his mental and
physical health. In his view, the factors relevant for an assessment of
non-pecuniary harm in the present case included the “extreme seriousness of
the violations of the Convention”, their duration, context and lasting impact.
687. The Government replied that the sum claimed by the applicant in
respect of the alleged non-pecuniary damage was excessive.
688. Article 41 empowers the Court to afford the injured party such
satisfaction as appears to it to be appropriate.
In the present case the Court has found serious violations of several
Convention provisions by the respondent State. It has held that the
responsibility of the respondent State is engaged in respect of the
applicant’s inhuman treatment and secret detention on its territory. The
respondent State has also failed to carry out an effective investigation as
required under Articles 3 and 13 of the Convention. In addition, the Court
has found a violation of the applicant’s rights under Article 8 (see
paragraphs 622, 644, 658, 666, and 677 above).
In view of the foregoing, the Court considers that the applicant has
undeniably suffered non-pecuniary damage which cannot be made good by
the mere finding of a violation.
689. Consequently, regard being had to the extreme seriousness of the
violations of the Convention of which the applicant has been a victim, and
ruling on an equitable basis, as required by Article 41 of the Convention
294
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
(see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595;
and Huseyn (Abu Zubaydah) v. Poland, cited above, § 567), the Court
awards him EUR 100,000, plus any tax that may be chargeable on that
amount.
2. Costs and expenses
690. The applicant also claimed EUR 30,000 for the costs and expenses
incurred before the Court.
691. The Government were of the view that the sum claimed with
respect to the costs of the proceedings was exorbitant and had not been in
any way substantiated by the applicant’s lawyer.
692. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 30,000 for the proceedings before the Court.
3. Default interest
693. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that the matters complained of are within the “jurisdiction” of
Lithuania within the meaning of Article 1 of the Convention and that the
responsibility of Lithuania is engaged under the Convention;
2. Dismisses the Government’s preliminary objections as to the lack of
Lithuania’s jurisdiction under Article 1 and as to the lack of the
applicant’s victim status under Article 34 of the Convention;
3. Decides to join to the merits the Government’s preliminary objections of
non-exhaustion of domestic remedies and non-compliance with the six-
month rule and dismisses them;
4. Declares the complaints under Articles 3, 5, 8 and 13 of the Convention
admissible;
5. Holds that there has been a violation of Article 3 of the Convention in its
procedural aspect on account of the respondent State’s failure to carry
ABU ZUBAYDAH v. LITHUANIA JUDGMENT
295
out an effective investigation into the applicant’s allegations of serious
violations of the Convention, including inhuman treatment and
undisclosed detention;
6. Holds that there has been a violation of Article 3 of the Convention in its
substantive aspect, on account of the respondent State’s complicity in
the CIA’s High-Value Detainee Programme, in that it enabled the US
authorities to subject the applicant to inhuman treatment on Lithuanian
territory and to transfer him from its territory, in spite of a real risk that
he would be subjected to treatment contrary to Article 3;
7. Holds that there has been a violation of Article 5 of the Convention on
account of the applicant’s undisclosed detention on the respondent
State’s territory and the fact that the respondent State enabled the US
authorities to transfer the applicant from its territory, in spite of a real
risk that he would be subjected to further undisclosed detention;
8. Holds that there has been a violation of Article 8 of the Convention;
9. Holds that there has been a violation of Article 13 of the Convention on
account of the lack of effective remedies in respect of the applicant’s
complaints under Article 3 of the Convention;
10. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 100,000 (one hundred thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 30,000 (thirty thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
11. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and delivered at a public hearing in the Human Rights
Building, Strasbourg, on 31 May 2018.
Abel Campos
Registrar
Linos-Alexandre Sicilianos
President
296
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX I
ANNEX I
List of abbreviations used in the Court’s judgment
2002 SSD Action Plan – Operational Action Plan dated 25 July 2002
2002 SSD Resolution – Resolution to initiate the file of operation dated
25 July 2002
2003 PACE Resolution - Parliamentary Assembly of the Council of
Europe’s Resolution no. 1340 (2003) on rights of persons held in the
custody of the United States in Afghanistan or Guantánamo Bay of 26 June
2003
2004 CIA Background Paper – background paper on the CIA’s
combined interrogation techniques of 30 December 2004
2004 CIA Report – CIA Inspector General’s report of 7 May 2004
“Special Review Counterterrorism Detention and Interrogation Activities
September 2001-October 2003”
2005 HRW List – Human Rights Watch’s “List of ‘Ghost Prisoners’
Possibly in CIA Custody” of 30 November 2005
2005 HRW Statement – Human Rights Watch’s Statement on US
Secret Detention Facilities of 6 November 2005
2006 Marty Report – Report of the Parliamentary Assembly of the
Council of Europe, Committee on Legal Affairs and Human Rights,
Rapporteur Mr Dick Marty, of 12 June 2006, “Alleged secret detentions and
unlawful inter-state transfers of detainees involving Council of Europe
member states” (Doc. 10957)
2007
EP
Resolution – European
Parliament
resolution
of
14 February 2007 on the alleged use of European countries by the CIA for
the transportation and illegal detention of prisoners (2006/22009INI)
2007 Marty Report – Report of the Parliamentary Assembly of the
Council of Europe, Committee on Legal Affairs and Human Rights,
Rapporteur Mr Dick Marty, of 11 June 2007, “Secret detentions and illegal
transfers of detainees involving Council of Europe member states: second
report” - (Doc. 11302.rev)
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX I
297
2009 DOJ Report – Report of the US Department of Justice, Office of
Professional Responsibility of 29 July 2009 -“Investigation into the Office
of Legal Counsel’s Memoranda Concerning Issues Relating to the Central
Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected
Terrorists”
2010 UN Joint Study – UN Human Rights Council “Joint Study on
Global Practices in Relation to Secret Detention in the Context of
Countering Terrorism of the Special Rapporteur on the Promotion and
protection of Human Rights and Fundamental Freedoms while Countering
Terrorism”, released on 19 February 2010
2011 CPT Report – Report to the Lithuanian Government on the visit to
Lithuania carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from
14 to 18 June 2010
2011 Marty Report – Report of the Parliamentary Assembly of the
Council of Europe, Committee on Legal Affairs and Human Rights,
Rapporteur Mr Dick Marty, of 16 September 2011, “Abuse of state secrecy
and national security: obstacles to parliamentary and judicial scrutiny of
human rights violations” (Doc. 12714)
2012
EP
Resolution – European
Parliament
resolution
of
11 September 2012 on alleged transportation and illegal detention of
prisoners in European countries by the CIA: follow-up of the European
Parliament TDIP Committee report (2012/2033(INI))
2013
EP
Resolution – European
Parliament
resolution
of
10 October 2013 on alleged transportation and illegal detention of prisoners
in European countries by the CIA (2013/2702(RSP)
2014 US Senate Committee Report – US Senate Select Committee on
Intelligence’s Executive Summary of the “Study of the Central Intelligence
Agency’s
Detention
and
Interrogation Program”,
released
on
9 December 2014
2015
EP
Resolution – European
Parliament
resolution
of
11 February 2015 on the US Senate Report on the use of torture by the CIA
(2014/2997(RSP))
2015 LIBE Briefing – Briefing for the European Parliament’s LIBE
Committee Delegation to Romania: CIA Detention in Romania and the
Senate Intelligence Committee Report, dated 15 September 2015
298
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX I
2015 Reprieve Briefing – Briefing and Dossier for the Lithuanian
Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence
Committee Report dated 11 January 2015 and prepared by Reprieve
2016 EP Resolution – European Parliament resolution of 8 June 2016 on
follow-up to the European Parliament resolution of 11 February 2015 on the
US Senate report on the use of torture by the CIA (2016/2573(RSP))
ACLU – American Civil Liberties Union
AI – Amnesty International,
CAA – Lithuanian Civil Aviation Administration (Civilinės Aviacijos
Administracija)
CIA – Central Intelligence Agency of the United States
CNSD – Lithuanian Seimas Committee on National Security and
Defence
CNSD Findings – the Annex to the Seimas’ Resolution No. XI-659 of
19 January 2010 – “Findings of the parliamentary investigation by the
Seimas Committee on National Security and Defence concerning the
alleged transportation and confinement of persons detained by the Central
Intelligence Agency of the United States of America on the territory of the
Republic of Lithuania”
CPT – European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment
CSC – Computer Sciences Corporation
CTC – Chief of the Counterterrorism Center
DCI Confinement Guidelines – CIA Guidelines on Confinement
Conditions for CIA Detainees signed on 28 January 2003
DCI Interrogation Guidelines – CIA Guidelines on Interrogations
Conducted Pursuant to the Presidential Memorandum of Notification of
17 September 2001 signed on 28 January 2003
DDO – CIA Deputy Director for Operations
EITs – Enhanced Interrogation Techniques
EP – European Parliament
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX I
299
EU – European Union
Fava Inquiry – inquiry following the European Parliament’s decision
setting up a Temporary Committee on the alleged use of European countries
by the CIA for the transportation and illegal detention of prisoners of
18 January 2006, Rapporteur Giovanni Claudio Fava
FBI – Federal Bureau of Investigation
Flautre Report – Report of the European Parliament Committee on
Civil Liberties Justice and Home Affairs on alleged transportation and
illegal detention of prisoners in European countries by the CIA: follow-up
of the European Parliament TDIP Committee (2012/2033(INI)), Rapporteur
Hélène Flautre, adopted by the European Parliament on 11 September 2012
HFHR – Helsinki Foundation for Human Rights
HVD – high-value detainee
HVD Programme – High-Value Detainee Program
HVTs – high-value targets
ICCPR – International Covenant on Civil and Political Rights
ICJ – International Commission of Jurists
ICRC – International Committee of the Red Cross
III Geneva Convention – Geneva (III) Convention relative to the
Treatment of Prisoners of War of 12 August 1949
IV Geneva Convention – Geneva (IV) Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949
ILC Articles – International Law Commission 2001 Articles on
Responsibility of States for Internationally Wrongful Acts
IRCT – International Rehabilitation Council for Torture
JITPS – Jeppesen International Trip Planning Service
LIBE – European Parliament’s Committee on Civil Liberties, Justice and
Home Affairs
300
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX I
Marty Inquiry - inquiry into the allegations of CIA secret detention
facilities in the Council of Europe’s member States launched by the
Parliamentary Assembly of the Council of Europe on 1 November 2005 and
conducted by Senator Dick Marty
MON - covert action Memorandum of Notification signed by President
George W. Bush on 17 September 2001
NATO – North Atlantic Treaty Organisation
ODNI – Office of the Director of National Intelligence
OGC – CIA Office of General Counsel
OIG – Office of Inspector General
OLC – Office of Legal Counsel
OTS – Office of Technical Service
PACE – Parliamentary Assembly of the Council of Europe
RDI Programme – Rendition Detention Interrogation Program
SBGS – Ministry of the Interior’s State Border Guard Service
SSD – State Security Department
TDIP – European Parliament’s Temporary Committee on the alleged use
of European countries by the CIA for the transportation and illegal detention
of prisoners
UN – United Nations
UN Special Rapporteur - UN Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering
terrorism
UNCAT – UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10 December 1984
Venice Commission – European Commission for Democracy through
Law
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX II
301
ANNEX II
List of references to the Court’s case-law
A. v. the United Kingdom, 23 September 1998, Reports of Judgments and
Decisions 1998-VI
Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010
Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions1996-VI
Al Nashiri v. Poland, no. 28761/11, 24 July 2014
Al Nashiri v. Romania, no. 33234/12, 31 May 2018
Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI
Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, ECHR 2010
Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR2011
Anguelova v. Bulgaria, no. 38361/97, ECHR 2002 IV
Armani Da Silva v. the United Kingdom [GC], no. 5878/08, ECHR 2016
Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, 18 December2012
Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II
Assenov and Others v. Bulgaria, 28 October 1998, Reports of Judgments
and Decisions 1998-VIII
Association “21 December 1989” and Others v. Romania, nos. 33810/07
and 18817/08, 24 May 2011
Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and
4 others, 10 April 2012
Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99,
ECHR 2001-XII
Benzer and Others v. Turkey, no. 23502/06, 12 November 2013
Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV 302
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX II
Cestaro v. Italy, no. 6884/11, 7 April 2015
Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments
and Decisions 1996-V
Creangă v. Romania [GC], no. 29226/03, 23 February 2012
Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV
Egmez v. Cyprus, no. 30873/96, ECHR 2000-XII
El-Masri v. the former Yugoslav Republic of Macedonia [GC],
no. 39630/09, ECHR 2012
Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010
Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and
2 others, 14 May 2002
Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts)
Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012
Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014
Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII
İlhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII
Imakayeva v. Russia, no. 7615/02, ECHR 2006-XIII (extracts)
Ireland v. the United Kingdom, 18 January 1978, Series A no. 25
Jalloh v. Germany [GC], no. 54810/00, ECHR 2006-IX
Jeronovičs v. Latvia [GC], no. 44898/10, 5 July 2016
Kadirova and Others v. Russia, no. 5432/07, 27 March 2012
Kaya v. Turkey, 19 February 1998, Reports of Judgments and Decisions1998-I
Krastanov v. Bulgaria, no. 50222/99, 30 September 2004
Kudła v. Poland [GC], no. 30210/96, ECHR 2000-XI
ABU ZUBAYDAH v. LITHUANIA JUDGMENT – ANNEX II 303
Kurt v. Turkey, 25 May 1998, Reports of Judgments and Decisions 1998-III
Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV
Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310
Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III
Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99,ECHR 2005-I
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR2005-VII
Nasr and Ghali v. Italy, no. 44883/09, 23 February 2016
Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV
Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, ECHR 2012(extracts)
Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III
Quinn v. France, 22 March 1995, Series A no. 311
Saadi v. Italy [GC], no. 37201/06, ECHR 2008
Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII
Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015
Savriddin Dzhurayev v. Russia, no. 71386/10, ECHR 2013 (extracts)
Selmouni v. France [GC], no. 25803/94, ECHR 1999-V
Shamayev and Others v. Georgia and Russia, no. 36378/02, ECHR 2005-III
Soering v. the United Kingdom, 7 July 1989, Series A no. 161
Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR2009
Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V
