FIRST SECTION
CASE OF AL NASHIRI v. ROMANIA
(Application no. 33234/12)
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.
iAL NASHIRI v. ROMANIA JUDGMENT
PROCEDURE.......................................................................................................... 1
THE FACTS.............................................................................................................4
I. PRELIMINARY
CONSIDERATIONS
REGARDING
THE
ESTABLISHMENT OF THE FACTS ............................................................4
II. EVIDENCE BEFORE THE COURT..............................................................5
III. BACKGROUND TO THE CASE ..................................................................6
A. Terrorist attacks of which the applicant has been suspected.........................6
1. USS Cole bombing in 2000 ................................................................................. 6
2. MV Limburg bombing in 2002............................................................................ 6
B. The so-called “High-Value Detainee Programme” .......................................7
1. The establishment of the HVD Programme......................................................... 8
(a) The US President’s memoranda .................................................................. 8
(i) Memorandum of 17 September 2001.................................................... 8
(ii) Memorandum of 7 February 2002........................................................ 9
(b) Abu Zubaydah’s capture and transfer to a CIA covert detention
facility in March 2002............................................................................... 10
(c) Setting up the CIA programme “to detain and interrogate terrorists
at sites abroad” .......................................................................................... 10
2. Enhanced Interrogation Techniques .................................................................. 11
(a) Description of legally sanctioned standard and enhanced
interrogation techniques ............................................................................ 11
(b) Expanding the use of the EITs beyond Abu Zubaydah’s
interrogations............................................................................................. 13
3. Standard procedures and treatment of “high-value detainees” in CIA
custody (combined use of interrogation techniques) ....................................... 14
4. Conditions of detention at CIA “black sites”..................................................... 19
5. The scale of the HVD Programme..................................................................... 20
6. Closure of the HVD Programme ....................................................................... 20
C. The United States Supreme Court’s judgment in Rasul v. Bush .................21
D. Role of Jeppesen Dataplan, Richmor Aviation and other air
companies in the CIA rendition operations.................................................21
1. Jeppesen Dataplan Inc. ...................................................................................... 21
2. Richmor Aviation .............................................................................................. 22
3. Other companies ................................................................................................ 22
E. Military Commissions..................................................................................24
1. Military Order of 13 November 2001................................................................ 24
2. Military Commission Order no. 1...................................................................... 25
3. The 2006 Military Commissions Act and the 2009 Military
Commissions Act............................................................................................. 28
4. Publicly expressed concerns regarding the procedure before the military
commission ...................................................................................................... 29
iiAL NASHIRI v. ROMANIA JUDGMENT
F. Review of the CIA’s activities involved in the HVD Programme in
2001-2009 by the US Senate....................................................................... 31
1. Course of the review.......................................................................................... 31
2. Findings and conclusions................................................................................... 32
IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE......................36
A. The applicant’s capture, transfer to the CIA’s custody, his secret
detention and transfers from mid-October 2002 to 6 June 2003, as
established by the Court in Al Nashiri v. Poland and supplemented
by the 2014 US Senate Committee Report .................................................36
B. The applicant’s transfers and detention between his rendition from
Poland on 6 June 2003 and his alleged rendition to Romania on 12
April 2004 as 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. Transfer from Poland to Morocco and detention in Morocco (from
6 June to 23 September 2003).......................................................................... 38
2. Transfer from Morocco to Guantánamo and detention in Guantánamo
(from 23 September 2003 to 12 April 2004).................................................... 40
C. The applicant’s alleged secret detention at a CIA “black site” in
Romania from 12 April 2004 to 6 October or 5 November 2005 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 .....................................................................42
1. The applicant’s initial submissions.................................................................... 42
2. The applicant’s alleged rendition to Romania on the plane N85VM on 12
April 2004 ........................................................................................................ 43
3. Detention and treatment to which the applicant was subjected......................... 46
4. The applicant’s alleged rendition from Romania on 6 October or
5 November 2005............................................................................................. 49
D. 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 .....................................................................53
E. The applicant’s detention in Guantánamo Bay and his trial before the
military commission from 6 September 2006 to present ............................54
1. Hearing before the Combatant Status Review Tribunal .................................... 54
2. Trial before the military commission................................................................. 54
F. Psychological effects of the HVD Programme on the applicant..................56
G. Identification of locations of the colour code-named CIA detention
sites in the 2014 US Senate Committee Report by experts......................... 57
H. “Detention Site Black” in the 2014 US Senate Committee Report.............57
I. Parliamentary inquiry in Romania ................................................................59
J. Criminal investigation in Romania...............................................................62
1. Submission by the Government of confidential documents from the
investigation file............................................................................................... 63
iiiAL NASHIRI v. ROMANIA JUDGMENT
2. The course of the investigation according to documentary evidence
produced by the Government........................................................................... 63
V. RELEVANT DOMESTIC LAW.................................................................... 68
A. Criminal Code .............................................................................................68
1. Territorial jurisdiction........................................................................................ 68
2. Prohibition of torture and offence of unlawful deprivation of liberty ............... 69
B. Code of Criminal Procedure ........................................................................69
VI. RELEVANT INTERNATIONAL LAW...................................................... 70
A. Vienna Convention on the Law of Treaties.................................................70
Article 26 “Pacta sunt servanda” ..................................................................... 70
Article 27 Internal law and observance of treaties........................................... 70
B. International Covenant on Civil and Political Rights..................................70
C. The UN Torture Convention........................................................................70
D. UN Geneva Conventions.............................................................................71
1. Geneva (III) Convention.................................................................................... 71
2. Geneva (IV) Convention.................................................................................... 72
E. International Law Commission, 2001 Articles on Responsibility of
States for Internationally Wrongful Acts ....................................................73
F. UN General Assembly Resolution 60/147...................................................74
VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL
KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND
HIGHLIGHTING VIOLATIONS CONCERNS AS OCCURRING
THE TO HUMAN IN AFTERMATH RIGHTS US-RUN OF
ALLEGEDLY DETENTION FACILITIES IN
11 SEPTEMBER 2001 ....................................................................................75
A. United Nations............................................................................................. 75
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..................................................................................... 75
2. Statement of the International Rehabilitation Council for Torture.................... 75
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) .................................... 76
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 ..............76
C. International non-governmental organisations ............................................77
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1. Amnesty International, Memorandum to the US Government on the
rights of people in US custody in Afghanistan and Guantánamo Bay,
April 2002 ........................................................................................................ 77
2. Human Rights Watch, “United States, Presumption of Guilt: Human
Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G),
August 2002 ..................................................................................................... 78
3. Human Rights Watch, “United States: Reports of Torture of Al-Qaeda
Suspects”, 26 December 2002 ......................................................................... 78
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......................................................................................................... 78
5. Amnesty International Report 2003 – United States of America, 28 May
2003.................................................................................................................. 78
6. Amnesty International, “Unlawful detention of six men from Bosnia-
Herzegovina in Guantánamo Bay”, 29 May 2003 ........................................... 79
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............................................................. 79
8. Amnesty International, “Incommunicado detention/Fear of ill-treatment”,
20 August 2003................................................................................................. 79
9. International Committee of the Red Cross, United States: ICRC
President urges progress on detention-related issues, news release
04/03, 16 January 2004 .................................................................................... 80
10. Human Rights Watch - Statement on US Secret Detention Facilities of
6 November 2005............................................................................................. 80
11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA
Custody of 30 November 2005........................................................................ 81
VIII. SELECTED MEDIA REPORTS AND ARTICLES................................82
A. International media......................................................................................82
B. Romanian media ..........................................................................................90
C. Der Spiegel’s publications in 2014 and 2015..............................................92
IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA
SECRET DETENTION AND RENDITION OF SUSPECTED
TERRORISTS IN EUROPE, INCLUDING ROMANIA............................ 95
A. Council of Europe........................................................................................95
1. Procedure under Article 52 of the Convention .................................................. 95
2. Parliamentary Assembly’s inquiry - the Marty Inquiry..................................... 96
(a) The 2006 Marty Report ............................................................................. 96
(b) The 2007 Marty Report ............................................................................. 99
(c) The 2011 Marty Report ........................................................................... 105
vAL NASHIRI v. ROMANIA JUDGMENT
B. European Parliament..................................................................................106
1. The Fava Inquiry.............................................................................................. 106
2. The 2007 European Parliament Resolution ..................................................... 111
3. The 2011 European Parliament Resolution ..................................................... 113
4. The Flautre Report and the 2012 European Parliament Resolution ................ 113
5. The 2013 European Parliament Resolution ..................................................... 114
6. The 2015 European Parliament Resolution ..................................................... 115
7. LIBE delegation’s visit to Romania (24-25 September 2015) ........................ 115
8. Follow-up to the visit....................................................................................... 116
9. The 2016 European Parliament Resolution ..................................................... 116
C. The 2007 ICRC Report..............................................................................117
D. United Nations........................................................................................... 120
1. The 2010 UN Joint Study ................................................................................ 120
2. The 2015 UN Committee against Torture’s Observations .............................. 122
X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE
GOVERNMENT ...........................................................................................122
A. Transcript of witness X’s statement made on 18 September 2013 ...........123
B. Transcript of testimony given by witness Y on 4 May 2015.....................123
C. Transcript of witness Z’s statement made on 17 September 2013 ............124
D. Transcript of testimony given by witness Z on 18 June 2015...................126
E. Transcripts of statements from other witnesses.........................................127
1. Witness A......................................................................................................... 128
2. Witness B......................................................................................................... 128
3. Witness C......................................................................................................... 129
4. Witness D......................................................................................................... 130
5. Witness E ......................................................................................................... 130
6. Witness F ......................................................................................................... 131
7. Witness G......................................................................................................... 131
8. Witness H......................................................................................................... 131
9. Witness I .......................................................................................................... 132
10. Witness J........................................................................................................ 132
11. Witness K....................................................................................................... 132
12. Witness L....................................................................................................... 133
13. Witness M...................................................................................................... 133
14. Witness N....................................................................................................... 133
15. Witness O....................................................................................................... 134
16. Witness P ....................................................................................................... 134
17. Witness Q....................................................................................................... 134
18. Witness R....................................................................................................... 135
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AL NASHIRI v. ROMANIA JUDGMENT
XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT .......136
A. RCAA letter of 29 July 2009..................................................................... 136
B. List of twenty-one “suspicious flights” produced by the Government......138
C. Documents concerning the N313P rendition mission on 16-28
January 2004 produced by Senator Marty and Mr J.G.S. in the course
of the PowerPoint presentation .................................................................139
D. The 2010 Findings of the Lithuanian Seimas Committee on National
Security and Defence (extracts) ................................................................140
E. Mr Hammarberg’s affidavit of 17 April 2013 ...........................................141
Affidavit of Thomas Hammarberg................................................................. 141
F. Dossier
(Memorandum)
of
30
March
2012
provided
by
Mr Hammarberg to the Romanian Prosecutor General (extracts) ............142
G. Mr Hammarberg’s replies to questions put to him in writing by the
Court and the parties .................................................................................147
1. The Court’s questions...................................................................................... 147
2. The Romanian Government’s questions.......................................................... 149
3. The applicant’s questions................................................................................. 150
H. Senator Marty’s affidavit of 24 April 2013...............................................151
I. The 2015 LIBE Briefing .............................................................................155
XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY
THE COURT.................................................................................................157
A. Mr Fava .....................................................................................................158
B. Presentation by Senator Marty and Mr J.G.S. “Distillation of
available documentary evidence, including flight data, in respect of
Romania and the case of Al Nashiri”........................................................163
C. Senator Marty ............................................................................................168
D. Mr J.G.S.....................................................................................................170
E. Mr Black ....................................................................................................174
THE LAW ............................................................................................................177
I. THE GOVERNMENT
ADMISSIBILITY OF THE APPLICATION.............................................177
A. Romania’s lack of jurisdiction and responsibility under the
Convention in respect of the applicant’s alleged rendition to
Romania, detention and ill-treatment in a CIA detention facility in
Romania and transfer out of Romania ......................................................177
AL NASHIRI v. ROMANIA JUDGMENT
vii
1. The Government .............................................................................................. 177
2. The applicant.................................................................................................... 180
3. The Court’s assessment ................................................................................... 181
B. Non-compliance with the rule of exhaustion of domestic remedies
and the six-month rule...............................................................................182
1. The Government .............................................................................................. 182
(a) Non-exhaustion of domestic remedies .................................................... 182
(b) Non-compliance with the six-month term............................................... 183
2. The applicant.................................................................................................... 183
(a) Non-exhaustion of domestic remedies .................................................... 184
(b) Non-compliance with the six-month rule................................................ 184
3. The Court’s assessment ................................................................................... 184
II. THE COURT
ASSESSMENT OF EVIDENCE..................................................................185
A. The parties’ positions on the facts and evidence.......................................185
1. The Government .............................................................................................. 185
(a) Lack of evidence demonstrating that a CIA ”black site” operated in
Romania .................................................................................................. 185
(i) Contradictory statements as to the “life cycle” of the alleged
CIA ”black site” in Romania............................................................ 185
(ii) Contradictory statements as to the location of the alleged CIA
”black site” in Romania.................................................................... 186
(b) Inconsistencies in the applicant’s account regarding the dates of his
alleged rendition to and from Romania, and his secret detention in
Romania .................................................................................................. 187
(c) Lack of credibility of evidence adduced by the applicant, in
particular the Marty 2006 and 2007 Reports, findings made by the
Council of Europe’s Commissioner for Human Rights in 2009-
2012, Reprieve research and CIA declassified documents ..................... 187
(d) Lack of evidence demonstrating that certain planes landing in
Romania between 22 September 2003 and 5 November 2005
carried out the CIA extraordinary rendition missions............................. 189
(e) Lack of evidence demonstrating that the Romanian authorities
entered into “secret cooperation agreements” with the CIA and
cooperated in the execution of the HVD Programme ............................. 191
(f) Lack of evidence demonstrating that the Romanian high-office
holders agreed to the running of a secret detention facility by the
CIA on Romanian territory, provided premises and knew of the
purposes of the impugned flights ............................................................ 191
(g) Lack of evidence of Romania’s knowledge of the CIA HVD
Programme at the material time .............................................................. 192
2. The applicant.................................................................................................... 192
(a) As regards the existence of a CIA secret detention facility in
Romania and the applicant’s secret detention in Romania ..................... 192
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AL NASHIRI v. ROMANIA JUDGMENT
(b) As regards the alleged inconsistencies in the applicant’s account
regarding the dates of his rendition to and from Romania and his
secret detention in Romania.................................................................... 194
(c) As regards the planes landing in Romania between 22 September
2003 and 5 November 2005 .................................................................... 194
(d) As regards the Government’s allegation of a lack of credibility of
sources of information and evidence....................................................... 195
(e) As regards Romania’s’ cooperation with the CIA and its complicity
in the HVD Programme .......................................................................... 195
(f) As regards Romania’s knowledge of the HVD Programme at the
material time............................................................................................ 197
B. Joint
submissions
by
Amnesty
International
(AI) and the
International Commission of Jurists (ICJ) on public knowledge of
the US practices in respect of captured terrorist suspects .........................199
C. The parties’ positions on the standard and burden of proof ......................201
1. The Government .............................................................................................. 201
2. The applicant.................................................................................................... 202
D. The Court’s assessment of the facts and evidence ....................................204
1. Applicable principles deriving from the Court’s case-law .............................. 204
2. Preliminary considerations concerning the establishment of the facts and
assessment of evidence in the present case.................................................... 205
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 Romania (mid-
October 2002-April 2004).............................................................................. 207
(a) Period from mid-October 2002 to 6 June 2003 ....................................... 207
(b) Whether the applicant’s allegations concerning his secret detention
and transfers in CIA custody from 6 June 2003 (transfer out of
Poland) to an unspecified two-digit date in April 2004 (transfer out
of Guantánamo) were proved before the Court....................................... 207
4. As regards the establishments of the facts and assessment of evidence
relevant to the applicant’s allegations concerning his rendition by the
CIA to Romania, secret detention in Romania and transfer by the CIA
out of Romania (12 April 2004 to 6 October or 5 November 2005) ............. 209
(a) Whether a CIA detention facility existed in Romania at the time
alleged by the applicant (22 September 2003 – beginning of
November 2005)...................................................................................... 209
(b) Whether the applicant’s allegations concerning his rendition to
Romania, secret detention at the CIA Detention Site Black in
Romania and transfer from Romania to another CIA secret
detention facility elsewhere (from 12 April 2004 to 6 October 2005
or 5 November 2005) were proved before the Court .............................. 220
(i) Preliminary considerations ................................................................ 220
(ii) Transfers and secret detention.......................................................... 221
(iii) The applicant’s treatment in CIA custody in Romania................... 225
AL NASHIRI v. ROMANIA JUDGMENT
ix
5. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning Romania’s knowledge
of and complicity in the CIA HVD Programme ............................................ 226
(a) Relations of cooperation between the Romanian authorities and the
CIA, including an agreement to host a detention facility, request for
and acceptance of a “subsidy” from the CIA, provision of premises
for the CIA and acquaintance with some elements of the HVD
Programme .............................................................................................. 226
(i) Agreement to host a CIA detention facility, request for and
acceptance of a “subsidy” from the CIA and provision of
premises for the CIA ........................................................................ 226
(ii) Acquiescence with some elements of the HVD Programme ........... 230
(b) Assistance in disguising the CIA rendition aircraft’s routes through
Romania by means of the so-called “dummy” flight planning ............... 231
(c) Special procedure for CIA flights............................................................ 232
(d) Informal transatlantic meeting................................................................. 234
(e) Circumstances routinely surrounding HVDs transfers and reception
at the CIA “black site” ............................................................................ 235
(f) Public knowledge of treatment to which captured terrorist suspects
were subjected in US custody in 2002-2005........................................... 235
6. The Court’s conclusions as to Romania’s alleged knowledge of and
complicity in the CIA HVD Programme ....................................................... 237
III. ROMANIA
THE CONVENTION....................................................................................240
A. The parties’ submissions ...........................................................................240
B. The Court’s assessment .............................................................................240
1. As regards jurisdiction..................................................................................... 240
2. As regards the State’s responsibility for an applicant’s treatment and
detention by foreign officials on its territory ................................................. 241
3. As regards the State’s responsibility for an applicant’s removal from its
territory........................................................................................................... 241
4. Conclusion as to the Romanian Government’s preliminary objection that
Romania lacks jurisdiction and responsibility under the Convention............ 243
IV. ALLEGED
VIOLATIONS
OF
ARTICLE
3
OF
THE
CONVENTION .............................................................................................244
A. Procedural aspect of Article 3 ...................................................................245
1. The parties’ submissions.................................................................................. 245
(a) The Government...................................................................................... 245
(b) The applicant........................................................................................... 248
2. The third-party interveners .............................................................................. 251
(a) The UN Special Rapporteur .................................................................... 251
(b) APADOR-CH.......................................................................................... 253
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AL NASHIRI v. ROMANIA JUDGMENT
(c) Joint
submissions
by
Amnesty
International
(AI) and the
International
Commission
of
Jurists
(ICJ)
on
“effective
investigation” .......................................................................................... 253
(d) Media Groups.......................................................................................... 254
3. The Court’s assessment ................................................................................... 254
(a) Admissibility ........................................................................................... 254
(b) Merits....................................................................................................... 255
(i) Applicable general principles deriving from the Court’s case-
law .................................................................................................... 255
(ii) Application of the above principles to the present case ................... 256
B. Substantive aspect of Article 3 ..................................................................262
1. The parties’ submissions.................................................................................. 262
(a) The Government...................................................................................... 262
(b) The applicant........................................................................................... 262
2. The Court’s assessment ................................................................................... 263
(a) Admissibility ........................................................................................... 263
(b) Merits....................................................................................................... 263
(i) Applicable general principles deriving from the Court’s case-
law .................................................................................................... 263
(ii) Application of the above principles to the present case ................... 265
(a) Treatment to which the applicant was subjected at the
relevant time .............................................................................. 265
(β) Court’s conclusion as to Romania’s responsibility ................... 268
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION ....269
A. The parties’ submissions ...........................................................................270
1. The Government .............................................................................................. 270
2. The applicant.................................................................................................... 270
B. The Court’s assessment .............................................................................271
1. Admissibility.................................................................................................... 271
2. Merits............................................................................................................... 271
(a) Applicable general principles deriving from the Court’s case-law ......... 271
(b) Application of the above principles to the present case .......................... 273
VI. ALLEGED
VIOLATION
OF
ARTICLE
8
OF
THE
CONVENTION .............................................................................................274
A. The parties’ submissions ...........................................................................274
1. The Government .............................................................................................. 274
2. The applicant.................................................................................................... 274
B. The Court’s assessment .............................................................................275
AL NASHIRI v. ROMANIA JUDGMENT
xi
1. Admissibility.................................................................................................... 275
2. Merits............................................................................................................... 275
VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION
WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION........................276
A. The parties’ submissions ...........................................................................276
B. The Court’s assessment .............................................................................276
1. Admissibility.................................................................................................... 276
2. Merits............................................................................................................... 277
(a) Applicable general principles deriving from the Court’s case-law ......... 277
(b) Application of the above principles to the present case .......................... 278
VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ..............................................................................................278
A. The parties’ submissions ...........................................................................279
1. The Government .............................................................................................. 279
2. The applicant.................................................................................................... 279
B. The Court’s assessment .............................................................................279
1. Admissibility.................................................................................................... 279
2. Merits............................................................................................................... 280
(a) Applicable general principles deriving from the Court’s case-law ......... 280
(b) Application of the above principles to the present case .......................... 281
IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE
CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF
PROTOCOL NO. 6 TO THE CONVENTION ..........................................283
A. The parties’ submissions ...........................................................................283
1. The Government .............................................................................................. 283
2. The applicant.................................................................................................... 283
B. The Court’s assessment .............................................................................283
1. Admissibility.................................................................................................... 283
2. Merits............................................................................................................... 284
(a) Applicable general principles deriving from the Court’s case-law ......... 284
(b) Application of the above principles to the present case .......................... 284
X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION ...............285
XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION ................285
A. The parties’ submissions ...........................................................................285
B. The Court’s assessment .............................................................................287
XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION...............288
A. Damage...................................................................................................... 289
B. Costs and expenses ....................................................................................290
C. Default interest...........................................................................................290
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AL NASHIRI v. ROMANIA JUDGMENT
ANNEX I: List of abbreviations used in the Court
ANNEX II: List of references to the Court
AL NASHIRI v. ROMANIA JUDGMENT
1
In the case of Al Nashiri v. Romania,
The European Court of Human Rights (Former First Section), sitting as a
Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Robert Spano,
Aleš Pejchal,
Mirjana Lazarova Trajkovska,
Paul Mahoney, judges,
Florin Streteanu, ad hoc judge,
and Abel Campos, Section Registrar,
Having deliberated in private on 29 June 2016 and 11 April 2018,
Delivers the following judgment, which was adopted on the latter date:
PROCEDURE
1. The case originated in an application (no. 33234/12) against Romania
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Saudi Arabian national of Yemeni descent, Mr Abd Al Rahim Husseyn
Muhammad Al Nashiri (“the applicant”), on 1 June 2012.
2. The applicant was represented by Mr J.A. Goldston, attorney, member
of the New York Bar and Executive Director of the Open Society Justice
Initiative (“the OSJI”), Mr R. Skilbeck, barrister, member of the England
and Wales Bar and Litigation Director of the OSJI, Ms A. Singh, attorney,
member of the New York Bar and Senior Legal Officer at the OSJI,
Ms N. Hollander, attorney, member of the New Mexico Bar, and also by
Ms D.O. Hatneanu, a lawyer practising in Bucharest.
The Romanian Government (“the Government”) were represented by
their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
3. The applicant alleged violations of various provisions of the
Convention, in particular:
(i) Articles 3, 5 and 8 in that Romania had enabled the Central
Intelligence Agency of the United States (“the CIA”) to detain him on its
territory at a secret detention facility, thereby allowing the CIA to subject
him to treatment that had amounted to torture, incommunicado detention
and deprivation of any access to, or contact with, his family;
(ii) Articles 2 and 3 of the Convention, Article 1 of Protocol No. 6 to the
Convention and also Articles 5 and 6 of the Convention in that Romania had
enabled the CIA to transfer him from its territory to other CIA-run detention
facilities elsewhere, despite a real risk of his being subjected to further
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AL NASHIRI v. ROMANIA JUDGMENT
torture, ill-treatment, incommunicado detention, a flagrantly unfair trial and
the imposition of the death penalty;
(iii) Article 3 alone and in conjunction with Article 13 and also
Articles 5 and 8 of the Convention in that Romania had failed to conduct an
effective and thorough investigation into his allegations of serious violations
of his rights protected by the Convention during his secret detention on
Romanian territory.
4. The application was allocated to the Third Section of the Court
(Rule 52 § 1 of the Rules of Court)
5. On 4 September 2012 the President of the Third Section gave priority
to the application, in accordance with Rule 41.
6. On 18 September 2012 the Chamber that had been constituted to
consider the case (Rule 26 § 1) gave notice of the application to the
Government, in accordance with Rule 54 § 2 (b).
7. 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 Amnesty International, (hereinafter also referred to as
“AI”) and the International Commission of Jurists (hereinafter also referred
to as “ICJ”), the Association for the Defence of Human Rights in Romania
– the Helsinki Committee (“APADOR-CH”), the twelve media
organisations (“Media Groups”), represented by Howard Kennedy Fsi LLP,
and the United Nations (UN) Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering
terrorism (“the UN Special Rapporteur”).
8. On 26 May 2015 the President of the Section decided to invite the
parties to submit further observations on certain factual developments. They
were also invited to make comments on the case in the light of the Court’s
judgment in the case of Al Nashiri v. Poland (no. 28761/11, 24 July 2014).
9. 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.
10. Iulia Motoc, the judge elected in respect of Romania, withdrew from
sitting in the case (Rule 28). The President accordingly appointed Mr Ioan
Florin Streteanu to sit as an ad hoc judge in her place (Article 26 § 4 of the
Convention and Rule 29 § 1).
11. 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
AL NASHIRI v. ROMANIA JUDGMENT
3
and Rule 8 of the Annex to the Rules of Court, and instructed the Registrar
accordingly.
12. On 28 June 2016 the Chamber held a fact-finding hearing and heard
evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the
Annex.
In the course of the fact-finding hearing the parties were also invited to
state their position on the confidentiality (Rule 33 § 2) of certain documents
produced by the Romanian Government, in particular annexes to the
Romanian Senate Report of 2007 (“the 2007 Romanian Senate Report” –
see also paragraphs 165-169 below) and material collected in the context of
a criminal investigation carried out by the Romanian authorities (see
paragraphs 171-190 below). The applicant was in favour of full disclosure,
whereas the Government considered that the confidentiality of annexes
nos. 1-11 to the 2007 Romanian Senate Report in the redacted versions
supplied by them could be lifted and that transcripts of evidence given by
witnesses during the investigation could be referred to in public, without
using any element that would allow the witnesses to be identified. That
included their names and surnames and their exact workplaces or
institutions that they represented.
As regards the material from the investigation file, the Government in
addition produced an English summary of annexes with documents
submitted by them. They did not object to the content of the summary being
referred to in public, in particular in the parties’ oral submissions at the
public hearing.
The Court acceded to the Government’s requests.
13. 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
Mrs C. BRUMAR, Agent of the Government, Ministry of Foreign
Affairs,
Mrs A.-L. RUSU, Chargé d’affaires a.i., Deputy to the Permanent
Representative of Romania to the Council of Europe, Counsel,
Mrs M. LUDUȘAN, judge seconded to the Agent of the Government
before the European Court of Human Rights, Ministry of Foreign
Affairs, Counsel,
Mr V.H.D. CONSTANTINESCU, judge seconded to the Agent of the
Government before the European Court of Human Rights, Ministry of
Foreign Affairs, Counsel,
Mr R. BODNAR, Bucharest Airports National Company, Counsel,
Mr M. SIMIONIS, Romanian Civil Aviation Authority, Counsel,
Mr A. ȘTEFAN, Romanian Air Traffic Services Administration,
Counsel;
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AL NASHIRI v. ROMANIA JUDGMENT
(b) for the applicant
Mr R. SKILBECK, Counsel,
Ms A. SINGH, Counsel,
Ms D.-O. HATNEANU, Counsel,
Ms N. HOLLANDER, Adviser.
The Court heard addresses by Ms Brumar, Ms Luduşan, Ms Singh and
Ms Hatneanu.
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 the elections of
Section Presidents, Linos-Alexandre Sicilianos, the 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).
THE FACTS
15. The applicant was born in 1965 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 he was allegedly subjected during the extraordinary
rendition operations by the United States’ authorities (see paragraphs 22-70
and 78-97 below) the Court is deprived of the possibility of obtaining any
form of direct account of the events complained of from the applicant (see
Al Nashiri v. Poland, no. 28761/11, § 397, 24 July 2014; see also Husayn
(Abu Zubaydah) v. Poland, no. 7511/13, § 397, 24 July 2014).
As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, 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 1 June 2012 evolved and partly
changed during the proceedings before the Court (see paragraphs 115-116
below).
The respondent Government contested the applicant’s version of the facts
on all accounts, maintaining that there was no evidence demonstrating that
AL NASHIRI v. ROMANIA JUDGMENT
5
they had occurred in Romania (see paragraphs 395-402 and 419-443
below).
17. Consequently, the facts of the case as set out below (see
paragraphs 98-164 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 has relied on its
findings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland
(both cited above), documentary evidence supplied by the applicant and the
Government, including witness testimony obtained in the criminal
investigation (see paragraphs 298-325 below), observations of the parties,
material available in the public domain (see paragraphs 212-245 below), an
affidavit made by Mr Thomas Hammarberg, the former Commissioner for
Human Rights of the Council of Europe, a dossier that he produced for the
Romanian Prosecutor General and his written reply to questions put to him
by the Court and the parties (see paragraphs 333-353 below), an affidavit
made by Senator Dick Marty (see paragraph 354 below) and testimony of
experts who gave oral evidence before the Court at the fact-finding hearing
held on 28 June 2016 (see paragraphs 359-393 below).
In the course of that hearing the Court, with the participation of the
parties, took evidence from the following persons:
(1) Mr Giovanni Claudio Fava, in his capacity as the Rapporteur of the
European Parliament’s Temporary Committee on the alleged use of
European countries by the CIA for the transport and illegal detention of
Prisoners (“the TDIP”), the relevant inquiry also being called “the Fava
Inquiry” and so referred to hereinafter (see paragraphs 268-277 below).
(2) Senator Dick Marty, in his capacity as Rapporteur of the Council of
Europe’s Parliamentary Assembly (“PACE”) in the inquiry into the
allegations of CIA secret detention facilities in the Council of Europe’s
member States (hereinafter the “Marty Inquiry” – see paragraphs 249-267
below).
(3) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty
Inquiry and advisor to Mr Hammarberg who had dealt with, among other
things, compiling data on flights associated with the CIA extraordinary
rendition (see paragraphs 249-267 and 334-342 below), as well as an expert
who had submitted a report on the applicant’s case in El-Masri v. the former
Yugoslav Republic of Macedonia (see El-Masri v. the former Yugoslav
Republic of Macedonia [GC], no. 39630/09, § 75, ECHR 2012) and who
had given oral evidence before the Court in the cases of Al Nashiri
v. Poland (cited above, §§ 42, 311-318 and 324-331) and Husayn (Abu
Zubaydah) v. Poland (cited above, §§ 42, 305-312 and 318-325) and also in
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AL NASHIRI v. ROMANIA JUDGMENT
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
Romania and the case of Al Nashiri”.
(4) Mr Crofton Black, in his capacity as an investigator at the Bureau of
Investigative Journalism, an expert in the investigation by the European
Parliament’s Committee on Civil Liberties, Justice and Home Affairs’
(“LIBE Committee”) into the alleged transportation and illegal detention of
prisoners in European countries by the CIA (see paragraphs 286-287
and 353-356 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 104, 107-108, 110, 119, 121, 124-125,129-132
and 357-391 below).
III. BACKGROUND TO THE CASE
A. Terrorist attacks of which the applicant has been suspected
1. USS Cole bombing in 2000
20. On 12 October 2000 a suicide terrorist attack on the United States
Navy guided-missile destroyer USS Cole took place in Aden, Yemen when
the ship stopped in Aden harbour for refuelling. It was attacked by a small
bomb-laden boat. The explosion opened a 40 foot hole in the warship,
killing 17 American sailors and injuring 40 other personnel.
The US authorities considered the applicant to have been one of the most
senior figures in al-Qaeda and a suspect in this bombing. He has been
suspected of masterminding and orchestrating the attack (see also
paragraphs 142-156 below).
2. MV Limburg bombing in 2002
21. On 6 October 2002 a French oil tanker MV Limburg, while it was in
the Gulf of Aden some miles offshore, was rammed by a small
explosives-laden boat which detonated. The tanker caught fire and
approximately 90,000 barrels (14,000 sq.m) of oil leaked into the Gulf of
Aden. One crew member was killed and twelve others injured. The style of
the attack resembled the suicide USS Cole bombing described above. The
US authorities have suspected the applicant of playing a role in the attack
(see also paragraphs 142-156 below).
AL NASHIRI v. ROMANIA JUDGMENT
7
B. The so-called
22. 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” but, subsequently, it was
also called “the High-Value Detainee Program” (“the HVD Program”) or
the “Rendition Detention Interrogation Program” (“the RDI Program”). 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 250-265 below). For the purposes of the present case, it is
referred to as “the HVD Programme”.
23. A detailed description of the HVD Programme made on the basis of
materials that were available to the Court in the case of Al Nashiri v. Poland
on the date of adoption of the judgment (8 July 2014) can be found in
paragraphs 47-71 of that judgment. Those materials included the classified
CIA documents released in redacted versions in 2009-2010 (see also
paragraphs 36-58 below).
24. 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 (see also
paragraphs 23-25 above). 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 79-98 below).
25. 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.
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 those
countries be redacted. The countries were accordingly listed by a single
letter of the alphabet, a letter which was nevertheless blackened throughout
the document. Furthermore, at the CIA’s request the original code names for
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AL NASHIRI v. ROMANIA JUDGMENT
CIA detention sites were replaced with new identifiers – the above-
mentioned colour code-names.
26. 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 159 below).
27. The description of the “HVD Programme” given below is based on
the CIA declassified documents that were available to the Court in
Al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, supplemented
by the 2014 US Senate Committee Report.
1. The establishment of the HVD Programme
(a) The US President
(i) Memorandum of 17 September 2001
28. 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.
29. 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
Counterterrorism Center (“CTC”), had sent an email to CIA Stations
seeking input on appropriate locations for potential CIA detention facilities.
30. 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
AL NASHIRI v. ROMANIA JUDGMENT
9
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”.
(ii) Memorandum of 7 February 2002
31. 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 204-209 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.”
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AL NASHIRI v. ROMANIA JUDGMENT
32. 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.
(b) Abu Zubaydah
March 2002
33. On 27 March 2002 the Pakistani authorities working with the CIA
captured Abu Zubaydah, 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).
34. 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 (“the
ICRC”).
35. On 29 March 2002 President Bush approved moving forward with
the plan to transfer Abu Zubaydah to a covert detention facility – Detention
Site Green – in a country whose name was blackened in the 2014 US Senate
Committee Report. The report further stated:
“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
sites abroad
36. 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.
37. 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”.
38. 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
AL NASHIRI v. ROMANIA JUDGMENT
11
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
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.”
39. 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”). The applicant fell into this category of
detainees.
2. Enhanced Interrogation Techniques
(a) Description of legally sanctioned standard and enhanced interrogation
techniques
40. 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.
41. 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.
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AL NASHIRI v. ROMANIA JUDGMENT
[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.
[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.”
42. 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;
AL NASHIRI v. ROMANIA JUDGMENT
13
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.
43. 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.
44. 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. ...”
45. 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
46. 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
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AL NASHIRI v. ROMANIA JUDGMENT
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
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.
47. The application of the EITs to other terrorist suspects in
CIA custody, including Mr Al Nashiri, began in November 2002.
3. Standard procedures and treatment of “high-value detainees” in
CIA custody (combined use of interrogation techniques)
48. 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
AL NASHIRI v. ROMANIA JUDGMENT
15
separate phases: Initial conditions, transition to interrogation and
interrogation” (see also El-Masri, cited above, § 124).
49. 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
experiences, once a HVD is turned over to CIA a predictable set of events
occur”. The capture is designated to “contribute to the physical and
psychological condition of the HVD prior to the start of interrogation”.
50. 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.”
51. 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.”
52. 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
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AL NASHIRI v. ROMANIA JUDGMENT
approach. [REDACTED] to HQS. Once approved, the interrogation process begins
provided the required medical and psychological assessments contain no contra
indications to interrogation.”
53. The third section, “Interrogation”, which is largely redacted,
describes the standard combined application of interrogation techniques
(1) “existing conditions”, (2) “conditioning
defined
as
detention
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:
AL NASHIRI v. ROMANIA JUDGMENT
17
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
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
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AL NASHIRI v. ROMANIA JUDGMENT
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.
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.”
54. 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 Al Nashiri v. Poland (see Al Nashiri
v. Poland, cited above, § 68).
55. 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
AL NASHIRI v. ROMANIA JUDGMENT
19
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.
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”
56. 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 George Tenet on 28 January 2003.
This document, together with the DCI Interrogation Guidelines (see
paragraph 55 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.
57. 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;
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AL NASHIRI v. ROMANIA JUDGMENT
(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.
58. 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
59. 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.
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
60. 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.
61. In January 2009 President Obama signed Executive Order 13491
that prohibited the CIA from holding detainees other than on a “short-term,
AL NASHIRI v. ROMANIA JUDGMENT
21
transitory basis” and limited interrogation techniques to those included in
the Army Field Manual.
C. The United States Supreme Court
62. On 28 June 2004 the US 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. ...”
D. Role of Jeppesen Dataplan, Richmor Aviation and other air
companies in the CIA rendition operations
63. According to various reports available in the public domain and
materials collected during international inquiries concerning the CIA’s
HDV Programme (see paragraphs 250-265, 268-277 and 355-358 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.
64. 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.
65. In the light of reports on rendition flights (see paragraphs 260,
289-293 and 318 below), 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.
66. In 2007 the American Civil Liberties Union (“the ACLU”) filed a
federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three
extraordinary rendition victims with the District Court for the Northern
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AL NASHIRI v. ROMANIA JUDGMENT
District of California. Later, two other persons joined the lawsuit as
plaintiffs. The suit charged that Jeppesen knowingly participated in these
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
67. Richmor Aviation is an aircraft company based in Hudson, New
York.
68. According to Reprieve, documents detailing Richmor Aviation’s
involvement in CIA renditions 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 116-121 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 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, 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
69. The Fava Inquiry (see paragraph 18 above and paragraphs 268-277
below) examined, among other things, the use by the CIA of private
companies and charter services to carry out the rendition operations. The
AL NASHIRI v. ROMANIA JUDGMENT
23
relevant parts of working document no. 4 produced in the course of the
inquiry read as follows:
“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 Gulfstream 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.”
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AL NASHIRI v. ROMANIA JUDGMENT
70. 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..
E. Military Commissions
1. Military Order of 13 November 2001
71. On 13 November 2001 President Bush issued the Military Order of
November 13, 2001 on Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism (“the 2001 Military
Commission Order”). It was published in the Federal Register on
16 November 2001.
The relevant parts of the order read as follows:
“Sec. 2. Definition and Policy.
(a) The term ‘individual subject to this order’ shall mean any individual who is not
a United States citizen with respect to whom I determine from time to time in writing
that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaeda;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international
terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have
as their aim to cause, injury to or adverse effects on the United States, its citizens,
national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i)
or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this
order.
(b) It is the policy of the United States that the Secretary of Defense shall take all
necessary measures to ensure that any individual subject to this order is detained in
accordance with section 3, and, if the individual is to be tried, that such individual is
tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this
order who is not already under the control of the Secretary of Defense but who is
under the control of any other officer or agent of the United States or any State shall,
upon delivery of a copy of such written determination to such officer or agent,
forthwith be placed under the control of the Secretary of Defense. ...
Sec. 3 Detention Authority of the Secretary of Defense. Any individual subject to
this order shall be –
(a) detained at an appropriate location designated by the Secretary of Defense
outside or within the United States; ...
AL NASHIRI v. ROMANIA JUDGMENT
25
Sec.4 Authority of the Secretary of Defense Regarding Trials of Individuals Subject
to this Order
(a) Any individual subject to this order shall, when tried, be tried by military
commission for any and all offenses triable by military commission that such
individual is alleged to have committed, and may be punished in accordance with the
penalties provided under applicable law, including life imprisonment or death.”
2. Military Commission Order no. 1
72. On 21 March 2002 D. Rumsfeld, the US Secretary of Defense at the
relevant time, issued the Military Commission Order No. 1 (effective
immediately) on Procedures for Trials by Military Commission of Certain
Non-United States Citizens in the War Against Terrorism (“the 2002
Military Commission Order”). The order was promulgated on the same day.
The relevant parts of the order read as follows:
“2. ESTABLISHMENT OF MILITARY COMMISSIONS
In accordance with the President’s Military Order, the Secretary of Defense or a
designee (Appointing Authority’) may issue orders from time to time appointing one
or more military commissions to try individuals subject to the President’s Military
Order and appointing any other personnel necessary to facilitate such trials.
4. COMMISSION PERSONNEL
A. Members
(1) Appointment
The Appointing Authority shall appoint the members and the alternate member or
members of each Commission. ...
(2) Number of Members
Each Commission shall consist of at least three but no more than seven members,
the number being determined by the Appointing Authority. ...
(3) Qualifications
Each member and alternate member shall be a commissioned officer of the United
States armed forces (‘Military Officer’), including without limitation reserve
personnel on active duty, National Guard personnel on active duty in Federal service,
and retired personnel recalled to active duty. ...
6. CONDUCT OF THE TRIAL
...
B. Duties of the Commission during Trial
The Commission shall:
(1) Provide a full and fair trial.
(2) Proceed impartially and expeditiously, strictly confining the proceedings to a
full and fair trial of the charges, excluding irrelevant evidence, and preventing any
unnecessary interference or delay.
(3) Hold open proceedings except where otherwise decided by the Appointing
Authority or the Presiding Officer in accordance with the President’s Military Order
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and this Order. Grounds for closure include the protection of information classified or
classifiable under reference (d); information protected by law or rule from
unauthorized disclosure; the physical safety of participants in Commission
proceedings, including prospective witnesses; intelligence and law enforcement
sources, methods, or activities; and other national security interests. The Presiding
Officer may decide to close all or part of a proceeding on the Presiding Officer’s own
initiative or based upon a presentation, including an ex parte, in camera presentation
by either the Prosecution or the Defense. A decision to close a proceeding or portion
thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or
any other person, but Detailed Defense Counsel may not be excluded from any trial
proceeding or portion thereof. Except with the prior authorization of the Presiding
Officer and subject to Section 9, Defense Counsel may not disclose any information
presented during a closed session to individuals excluded from such proceeding or
part thereof. Open proceedings may include, at the discretion of the Appointing
Authority, attendance by the public and accredited press, and public release of
transcripts at the appropriate time. Proceedings should be open to the maximum extent
practicable. Photography, video, or audio broadcasting, or recording of or at
Commission proceedings shall be prohibited, except photography, video, and audio
recording by the Commission pursuant to the direction of the Presiding Officer as
necessary for preservation of the record of trial.
...
D. Evidence
(1) Admissibility
Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if
any other member of the Commission so requests at the time the Presiding Officer
renders that opinion, the opinion of the Commission rendered at that time by a
majority of the Commission), the evidence would have probative value to a
reasonable person.
(5) Protection of Information
(a) Protective Order
The Presiding Officer may issue protective orders as necessary to carry out the
Military Order and this Order, including to safeguard ‘Protected Information’, which
includes:
(i) information classified or classifiable pursuant to reference (d);
(ii) information protected by law or rule from unauthorized disclosure;
(iii) information the disclosure of which may endanger the physical safety of
participants in Commission proceedings, including prospective witnesses;
(iv) information concerning intelligence and law enforcement sources, methods, or
activities; or (v) information concerning other national security interests. As soon as
practicable, counsel for either side will notify the Presiding Officer of any intent to
offer evidence involving Protected Information.
(b) Limited Disclosure
The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as
necessary to protect the interests of the United States and consistent with Section 9,
direct
AL NASHIRI v. ROMANIA JUDGMENT
27
(i) the deletion of specified items of Protected Information from documents to be
made available to the Accused, Detailed Defense Counsel, or Civilian Defense
Counsel;
(ii) the substitution of a portion or summary of the information for such Protected
Information; or
(iii) the substitution of a statement of the relevant facts that the Protected
Information would tend to prove.
The Prosecution’s motion and any materials submitted in support thereof or in
response thereto shall, upon request of the Prosecution, be considered by the Presiding
Officer ex parte, in camera, but no Protected Information shall be admitted into
evidence for consideration by the Commission if not presented to Detailed Defense
Counsel.
...
G. Sentence
Upon conviction of an Accused, the Commission shall impose a sentence that is
appropriate to the offense or offenses for which there was a finding of Guilty, which
sentence may include death, imprisonment for life or for any lesser term, payment of a
fine or restitution, or such other lawful punishment or condition of punishment as the
Commission shall determine to be proper.
Only a Commission of seven members may sentence an Accused to death. A
Commission may (subject to rights of third parties) order confiscation of any property
of a convicted Accused, deprive that Accused of any stolen property, or order the
delivery of such property to the United States for disposition.
H. Post-Trial Procedures
...
(2) Finality of Findings and Sentence
A Commission finding as to a charge and any sentence of a Commission becomes
final when the President or, if designated by the President, the Secretary of Defense
makes a final decision thereon pursuant to Section 4(c)(8) of the President’s Military
Order and in accordance with Section 6(H)(6) of this Order. An authenticated finding
of Not Guilty as to a charge shall not be changed to a finding of Guilty. Any sentence
made final by action of the President or the Secretary of Defense shall be carried out
promptly. Adjudged confinement shall begin immediately following the trial.
...
(4) Review Panel
The Secretary of Defense shall designate a Review Panel consisting of three
Military Officers, which may include civilians commissioned pursuant to reference
(e). At least one member of each Review Panel shall have experience as a judge. The
Review Panel shall review the record of trial and, in its discretion, any written
submissions from the Prosecution and the Defense and shall deliberate in closed
conference. The Review Panel shall disregard any variance from procedures specified
in this Order or elsewhere that would not materially have affected the outcome of the
trial before the Commission. Within thirty days after receipt of the record of trial, the
Review Panel shall either
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(a) forward the case to the Secretary of Defense with a recommendation as to
disposition, or
(b) return the case to the Appointing Authority for further proceedings, provided
that a majority of the Review Panel has formed a definite and frim conviction that a
material error of law occurred.
(5) Review by the Secretary of Defense
The Secretary of Defense shall review the record of trial and the recommendation of
the Review Panel and either return the case for further proceedings or, unless making
the final decision pursuant to a Presidential designation under Section 4(c)(8) of the
President’s Military Order, forward it to the President with a recommendation as to
disposition.
(6) Final Decision
After review by the Secretary of Defense, the record of trial and all
recommendations will be forwarded to the President for review and final decision
(unless the President has designated the Secretary of Defense to perform this
function). If the President has so designated the Secretary of Defense, the Secretary
may approve or disapprove findings or change a finding of Guilty to a finding of
Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the
sentence imposed or any portion thereof. If the Secretary of Defense is authorized to
render the final decision, the review of the Secretary of Defense under Section 6(H)(5)
shall constitute the final decision.”
3. The 2006 Military Commissions Act and the 2009 Military
Commissions Act
73. On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld,
548 U.S. 557, 635 (2006), that the military commission “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”. It further held:
“(a) The commission’s procedures, set forth in Commission Order No. 1, provide,
among other things, that an accused and his civilian counsel may be excluded from,
and precluded from ever learning what evidence was presented during, any part of the
proceeding the official who appointed the commission or the presiding officer decides
to ‘close’. Grounds for closure include the protection of classified information, the
physical safety of participants and witnesses, the protection of intelligence and law
enforcement sources, methods, or activities, and “other national security interests.”
Appointed military defense counsel must be privy to these closed sessions, but may, at
the presiding officer’s discretion, be forbidden to reveal to the client what took place
therein. Another striking feature is that the rules governing Hamdan’s commission
permit the admission of any evidence that, in the presiding officer’s opinion, would
have probative value to a reasonable person. Moreover, the accused and his civilian
counsel may be denied access to classified and other ‘protected information’, so long
as the presiding officer concludes that the evidence is ‘probative’ and that its
admission without the accused’s knowledge would not result in the denial of a full and
fair trial.”
74. In consequence, the Military Commission Order was replaced by the
Military Commissions Act of 2006 (“the 2006 MCA”), an Act of Congress,
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29
passed by the US Senate and US House of Representatives, respectively, on
28 and 29 September 2006 and signed into law by President Bush on
17 October 2006.
On 28 October 2009 President Obama signed into law the Military
Commissions Act of 2009 (“the 2009 MCA”).
On 27 April 2010 the Department of Defense released new rules
governing the military commission proceedings.
The rules include some improvements of the procedure but they still
continue, as did the rules applicable in 2001-2009, to permit the
introduction of coerced statements under certain circumstances if “use of
such evidence would otherwise be consistent with the interests of justice”.
4. Publicly expressed concerns regarding the procedure before the
military commission
75. On 28 November 2001 the Human Rights Watch published “Fact
Sheet: Past U.S. Criticism of Military Tribunals”, which, in so far as
relevant, read as follows:
“Under President Bush’s November 13th Military Order on military commissions,
any foreign national designated by the President as a suspected terrorist or as aiding
terrorists could potentially be detained, tried, convicted and even executed without a
public trial, without adequate access to counsel, without the presumption of innocence
or even proof of guilt beyond reasonable doubt, and without the right to appeal.
The U.S. State Department has repeatedly criticized the use of military tribunals to
try civilians and other similar limitations on due process around the world. Indeed, its
annual Country Reports on Human Rights Practices evaluate each country on the
extent to which it guarantees the right to a ‘fair public trial’ – which it defines to
include many of the due process rights omitted by the President’s Military Order. The
Order may make future U.S. efforts to promote such standards appear hypocritical.
Indeed, even if its most egregious failings are corrected in subsequent regulations, the
text of the Order may become a model for governments seeking a legal cloak for
political repression.”
76. On 8 December 2001 New York Times published two reports relating
to the procedure before the military commissions – “United Nations: Rights
Official Criticizes U.S. Tribunal Plan” in its World Briefing and an article
“Nation challenged”.
The material in the World Briefing read:
“The United Nations human rights commissioner, Mary Robinson, criticized the
Bush administration plan to set up military tribunals for terrorist suspects, saying they
skirt democratic guarantees. These safeguards, including right to a fair trial, must be
upheld even in crises, she said, adding that it was not enough to say trust me as a
government. She said that the Sept. 11 terrorist attacks were crimes against humanity
meriting special measures but said that the plan for secret trials was so overly broad
and vaguely worded that it threatened fundamental rights.”
The article read, in so far as relevant, as follows:
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“More than 300 law professors from around the country are protesting President
Bush’s order to establish military tribunals for foreign terrorist suspects.
In a letter that originated at Yale Law School, the lawyers assert that such tribunals
are ‘legally deficient, unnecessary and unwise’.
The lawyers, who represent varying institutions and political philosophies, say the
tribunals as outlined so far would violate the separation of powers, would not comport
with constitutional standards of due process and would allow the president to violate
binding treaties.
The tribunals, they say, assume that procedures used in civil courts or military
courts-martial would be inadequate to handle such cases. And they say that using
them would undercut the ability of the United States to protest when such tribunals are
used against American citizens in other countries.
The letter was sent to Senator Patrick J. Leahy, the Vermont Democrat who is
chairman of the Judiciary Committee and who questioned Attorney General John
Ashcroft at length on Thursday about the tribunals.
Mr. Ashcroft defended them, saying they would be used only for war crimes.
Referring to the Sept 11 terrorist attacks, Mr. Ashcroft said, ‘When we come to those
responsible for this, say who are in Afghanistan, are we supposed to read them the
Miranda rights, hire a flamboyant defense lawyer, bring them back to the United
States to create a new cable network of Osama TV?’ ...”
77. On 22 March 2003 Amnesty International issued a public statement
“USA – Military commissions: Second-class justice” which, in so far as
relevant, read as follows:
“The operating guidelines for trials by executive military commission, issued by the
US Secretary of Defence yesterday, have thrown into stark relief the fundamental
defects of the Military Order signed by President Bush on 13 November 2001,
Amnesty International said today.
‘We have said from the start that the Military Order was too flawed to fix and
should be revoked’, Amnesty International said. ‘That the Pentagon has paid lip
service to due process in its commission guidelines cannot disguise the fact that any
trial before these executive bodies would violate the USA’s international obligations’.
Amnesty International is repeating its call for the Military Order to be rescinded,
and for no person to be tried before the military commissions. The fundamental flaws
include:
! The Military Order is discriminatory. US nationals will not be tried by military
commission, even if accused of the same offence as a foreign national, but rather tried
by ordinary civilian courts with a broad range of fair trial protections. Under the
Order, selected foreign nationals will receive second-class justice, in violation of
international law which prohibits discriminatory treatment, including on the basis of
nationality.
! The commissions would allow a lower standard of evidence than is admissible in
the ordinary courts, including hearsay evidence. The Pentagon guidelines do not
expressly exclude statements extracted under torture or other coercive methods. These
deficiencies are particularly troubling given the lack of due safeguards during
interrogation and the fact that the commissions will have the power to hand down
death sentences.
AL NASHIRI v. ROMANIA JUDGMENT
31
! In violation of international law, there will be no right of appeal to an independent
and impartial court established by law. Instead, there would be a review by a three-
member panel appointed by the Secretary of Defence.
! The military commissions would entirely lack independence from the executive.
The President has given himself or the Secretary of Defence the power to name who
will be tried by the commissions, to appoint or to remove the members of those
commissions, to pick the panel that will review convictions and sentences, and to
make the final decision in any case.
...
The procedures infringe the right to a fair trial in a number of other ways, including
failing to guarantee that civilian defence counsel will be able to see all the evidence
against their clients, permitting the use of secret evidence and anonymous witnesses,
failing to guarantee that all relevant documents will be translated for the accused, and
forcing the accused to accept US military lawyers as co-counsel against their wishes.
Moreover, Pentagon officials yesterday stated that even if acquitted by the military
commissions, the defendants may remain in detention indefinitely. Amnesty
International is concerned that the Military Order of 13 November allows for
indefinite detention without trial. The USA is currently holding without charge or trial
more than 500 people in Afghanistan and Guantánamo Bay.
They have been denied access to the courts or to legal counsel. This is despite the
fact that interrogations at Camp X-Ray have been continuing for two months. ...”
F. Review of the CIA
2001-2009 by the US Senate
1. Course of the review
78. 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. The destruction was carried out in
November 2005.
79. 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 and Al Nashiri and more that than six million pages of CIA
material, including operational cables, intelligence reports, internal
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memoranda and emails, briefing materials, interview transcripts, contracts
and other records.
80. 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
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
14 December 2014 (see also paragraph 22 above).
81. The passages of the 2014 US Senate Committee Report relating to
Mr Al Nashiri’s secret detention relevant for the present case are rendered
below (see paragraphs 99, 109, 114, 126-127, 133, 139-140 and 160-164
below).
2. Findings and conclusions
82. The Committee made twenty findings and conclusions. They can be
summarised, in so far as relevant, as follows.
83. Conclusion 2 states that “the CIA’s justification for the use of its
enhanced interrogation techniques rested on inaccurate claims of their
effectiveness”.
84. 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, it is added:
“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.”
AL NASHIRI v. ROMANIA JUDGMENT
33
85. 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.”
86. 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.
87. 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.”
88. 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”. The CIA was not prepared to take
custody of its first detainee, Abu Zubaydah and lacked a plan for the
34
AL NASHIRI v. ROMANIA JUDGMENT
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 from [his] being turned over to
another country”. Also, as interrogations started, the CIA deployed persons
who lacked relevant training and experience.
89. 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.
90. 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.
91. 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 26 were wrongfully held and did not meet the
detention standard in the MON (see paragraph 25 above).
92. 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”.
93. It was established that the CIA required secrecy and cooperation
from other nations in order to operate clandestine detention facilities.
According the 2014 US Senate Committee Report, both had eroded
significantly before President Bush publicly disclosed the programme on
AL NASHIRI v. ROMANIA JUDGMENT
35
6 September 2006 (see also paragraph 60 above). From the beginning of the
program, 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 (name blackened) 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 programme.
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.
94. 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 62 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 U.S.
Supreme Court decision in Hamdan v. Rumsfeld (see also paragraph 73
above) caused the CIA to again temporarily suspend the use of the EITs.
95. 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.
After detaining at least 113 individuals through 2004, subsequently the
CIA brought only six additional detainees into its custody: four in 2005, one
in 2006, and one in 2007.
By March 2006, the programme 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.
96. 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
two facilities costing nearly [number redacted] million that were never used,
in part due to the host country’s political concerns.
97. Conclusion 20 further 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. The CIA Headquarters encouraged CIA Stations to
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AL NASHIRI v. ROMANIA JUDGMENT
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. The applicant
detention and transfers from mid-October 2002 to 6 June 2003, as
established by the Court in
supplemented by the 2014 US Senate Committee Report
98. As regards the events preceding the applicant’s secret detention in
Poland, i.e. his capture in Dubai, United Arab Emirates, and initial detention
from the end of October 2002 to 4 December 2002, in Al Nashiri v. Poland
(§§ 401 and 404) the Court held as follows:
“401. The Court notes that the CIA official documents clearly confirm that by
November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to
as ‘High-Value Detainees’, in its custody and that they were interrogated at a CIA
black site with the use of the EITs – the applicant immediately after his arrival at that
place on 15 November 2002 ... .
...
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, was detained in the CIA detention facility in
Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was
also held in the same facility at that time and that they were both moved together to
‘another CIA black site’ on 4 December 2002 (see Husayn (Abu Zubaydah), cited
above, § 404).”
The experts, Mr J.G.S and Senator Marty, heard by the Court at the fact-
finding hearing in Al Nashiri v. Poland, identified the detention facility as
the one known under the codename “Cat’s Eye” or “Catseye” and located in
Bangkok, Thailand (see Al Nashiri v. Poland, cited above, § 403).
At “Cat’s Eye” the CIA subjected the applicant to the EITs, including
waterboarding from 15 November to 4 December 2002 (ibid. §§ 86-88).
99. As regards the early period of the applicant’s detention, the 2014 US
Senate Committee Report includes the following information. It indicates
the date of the applicant’s capture as “mid-October 2002”. According to the
report, at that time “he provided information while in custody of a foreign
government”. On an unspecified date – i.e. redacted in the 2014 US Senate
Committee Report – in November 2002 he was rendered by the CIA to a
secret detention site code-named “Detention Site Cobalt”. In Al Nashiri
v. Poland that site is referred to as being code-named “Salt Pit” and located
in Afghanistan (see Al Nashiri v. Poland, cited above, §§ 83-84). The report
states that he was held at that site briefly, for a number of days (redacted in
AL NASHIRI v. ROMANIA JUDGMENT
37
the report), before being transferred to another detention site, identified in
Al Nashiri v. Poland as “Cat’s Eye” in Thailand (see paragraph 97 above).
In the 2014 US Senate Committee Report that facility is referred to as
“Detention Site Green”. The report further states that:
“In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and
Abu Zubaydah were rendered to DETENTION SITE BLUE.”
100. As regards the events after 4 December 2002, in Al Nashiri
v. Poland (§ 417) the Court held:
“417. 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 Abu Zubaydah, arrived in
Szymany on board the CIA rendition aircraft N63MU;
(2) from 5 December 2002 to 6 June 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 interrogated
by the CIA and subjected to EITs and also to unauthorised interrogation techniques as
described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;
4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA
rendition aircraft N379P.”
101. The events that took place between 5 December 2002 and 6 June
2003 at the CIA detention facility identified in Al Nashiri v. Poland as being
code-named “Quartz” and located in Poland, including the use of
unauthorised interrogation techniques against the applicant, correspond to
the events that the 2014 US Senate Committee Report relates as occurring at
“Detention Site Blue”.
B. The applicant
from Poland on 6 June 2003 and his alleged rendition to Romania
on 12 April 2004 as reconstructed on the basis of the 2014 US
Senate Committee Report and other documents and as
corroborated by experts heard by the Court
102. The 2014 US Senate Committee Report has established that
“beginning in June 2003, the CIA transferred Al Nashiri to five different
CIA detention facilities before he was transferred to US military custody on
5 September 2006”.
103. 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
countries of his secret detention.
104. Mr J.G.S. stated that the applicant was transported from Poland
first to Morocco, second to Guantánamo Bay, third to Romania, then to the
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AL NASHIRI v. ROMANIA JUDGMENT
fourth site – which, according to him, was with a high degree of probability
Lithuania – before being transferred to Afghanistan, the fifth “black site”
and, finally back to Guantánamo Bay.
In particular, Mr J.G.S. testified as follows:
“... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate
Report that from June 2003 Al Nashiri was moved to five different detention facilities
before his ultimate transfer to Guantánamo Bay in September 2006. This provides us
with a precise timeframe, June 2003 to September 2006, and it provides us with a
precise number of transfers which we then have to correlate with his interrogation
schedule and the available flight data to determine where he was held. It is on that
basis that we have been able to arrive at the conclusion that he was transported from
Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania,
to one further site, and with a high degree of probability, Lithuania, before being
transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are
very limited possibilities as to where the CIA could take its detainees because it
always maintained a very small range of sites, and because the planes are the same,
they operate upon systematic methodologies, notably dummy flight planning,
switching of aircraft and all the other tactical elements described. One can narrow
down that probability to a certitude, with the right rigour of investigation, and it is that
which we have applied to arrive at these conclusions, which have subsequently been
validated in the official record.”
105. In the light of the material in the Court’s possession the chronology
of the applicant’s detention can be described as follows.
1. Transfer from Poland to Morocco and detention in Morocco (from
6 June to 23 September 2003)
106. In Al Nashiri v. Poland the Court established, inter alia, that in the
light of the accumulated evidence, “there [could] be no doubt that the
N379P, also known as “Guantánamo Express”, a Gulfstream V with
capacity for eighteen passengers but usually configured for eight, arrived in
Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the
runway for over two hours and then departed for Rabat, Morocco” (see
Al Nashiri v. Poland, cited above, § 408).
It was also established that it had been one of the most notorious
rendition aircraft used by the CIA for transportation of its prisoners. The
plane N379P set off from Dulles Airport, Washington D.C. on Tuesday
3 June at 23:33 GMT and undertook a four-day flight circuit, during which
it landed in and departed from six different foreign countries including
Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The
aircraft returned from Portugal back to Dulles Airport on 7 June 2003 (ibid.
§§ 103-106 and 291-292).
107. Mr J.G.S. at the fact-finding hearing testified as follows:
“As was established in the earlier proceedings, Al Nashiri was taken from Poland to
Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003.
And after detention there for a period of only 3 months, he was then transferred to the
CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report
AL NASHIRI v. ROMANIA JUDGMENT
39
provides extensive detail on the evolution of CIA operations in respect of Morocco
and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as
having been transferred out of a country which is identifiable as Morocco, to the CIA
detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the
original agreed timeframe. This passage resides within a section of the report which
describes difficult and sometimes acrimonious relations between the CIA and its
Moroccan counterparts, and it is evident that, in fact, the date, redacted in this
passage, is September 2003, which is precisely the time at which our flight
information demonstrates an aircraft arriving in Morocco and transporting detainees
onwards to Guantánamo Bay.”
108. According to Mr J.G.S., the plane N379P took the applicant,
together with another CIA detainee, Ramzi bin al-Shibh, from Szymany,
Poland to Rabat, Morocco, to a facility lent to the CIA by their Moroccan
counterparts. He testified as follows:
“The starting point in assessing Al Nashiri’s own chronology of secret detention in
these proceedings should be Poland, because we have it confirmed, as a matter of
judicial fact, that Al Nashiri was detained in Poland, having been transported there on
the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he
found himself in Poland at the end of 2002, during which he was subjected to all the
documented abuse, the enhanced interrogation techniques and the unauthorised
techniques described in the earlier proceedings, into the calendar year 2003. In the
earlier proceedings we presented a range of flights which brought detainees into
Poland.
However, the first flight which took detainees out of Poland occurred on 5 and
6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we
can see this outward flight from Poland as the starting point of Mr Nashiri’s next
chronology of detention. It is stated explicitly June 2003, from that point onwards,
Mr Nashiri was detained in five further sites before ultimately being transferred to
Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together
with another CIA detainee, Ramzi bin al-Shibh, to Rabat, Morocco. Rabat, Morocco,
at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts.
It was a facility which resided within the Moroccan system, and it is described in
explicit detail in the Senate Report. That facility was the same place to which some
persons from Guantánamo would be later taken back, but I will explain why Mr
Nashiri was not one of those, with reference to the same material. In 2003, according
to the report, it was allowed to operate until September, at which point relations
became acrimonious and certain conditions were placed upon it. The CIA collected its
detainees who were housed there, which included Mr Al Nashiri, on 23 September
2003 in the rendition circuit I demonstrated. That is the date confirmed from the
CIA’s own reporting, and the flight confirmed through our investigations, the
rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to
Morocco as number 1, Guantánamo as number 2.”
109. The 2014 US Senate Committee Report’s section entitled “Country
[name redacted] Detains Individuals on the CIA’s Behalf”, in so far as
relevant, reads as follows:
“Consideration of a detention facility in Country [name blackened] began in [month
blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the
custody of a foreign government to CIA custody [blackened] which had not yet
informed the country’ political leadership of the CIA’s request to establish a
40
AL NASHIRI v. ROMANIA JUDGMENT
clandestine detention facility in Country [blackened], surveyed potential sites for the
facility, while the CIA set aside [USD] [number blackened] 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
existing Country [blackened] detention facility, until the CIA’s own facility could be
built.
...
By [day/month blackened] 2003, after an extension of five months beyond the
originally agreed upon timeframe for concluding CIA detention activities in Country
[blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country
[blackened]| to the CIA detention facility at Guantánamo Bay, Cuba.”
2. Transfer from Morocco to Guantánamo and detention in
Guantánamo (from 23 September 2003 to 12 April 2004)
110. According to Mr J.G.S, on 23 September 2003 the applicant was
transported from Rabat to Guantánamo Bay on the plane N313P.
Mr J.G.S., in the course of the above mentioned PowerPoint presentation
at the fact-finding hearing (see paragraphs 18 above and 367-376 below),
gave the following details concerning N313P’s circuit of 20-24 September
2003:
“Having departed from Washington, this aircraft, ... N313P, flew to Prague in the
Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan,
where dissident detainees, handed over to the CIA by local intelligence services, were
rendered to secret detention in Kabul.
From Kabul, on 21 September 2003, the aircraft transported several detainees out of
detention in Afghanistan towards detention in Europe. The first stop in Europe was
the detention site at Szymany, in northern Poland, which was explicitly described in
the [Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland] proceedings, and
this circuit is unprecedented and indeed unique because it is the only occasion on
which a rendition flight carrying CIA detainees left one European site and flew
directly to another European detention site, in this case in Bucharest, Romania. ...
From Bucharest, the rendition plane carried further detainees out to Rabat. These
were persons who had boarded on earlier legs, not persons leaving Romania, and from
Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the
CIA operated a secret detention facility apart from the larger military facility at
Guantánamo Bay.”
111. As established in Husayn (Abu Zubaydah) v. Poland, the plane
N313P landed in Szymany, Poland on 22 September 2003 en route from
Kabul, Afghanistan. On that day Mr Abu Zubaydah was transferred by the
CIA from Poland on board that plane.
The plane set off from Dulles Airport in Washington, D.C. on Saturday
20 September 2003 at 22h02m GMT and undertook a four-day flight circuit,
during which it landed in and departed from six different foreign countries,
as well as the U.S. Naval Base at Guantánamo Bay.
AL NASHIRI v. ROMANIA JUDGMENT
41
These six countries, in the order in which the aircraft landed there, were:
the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania, and
Morocco. The aircraft flew from Rabat, Morocco to Guantánamo Bay on
the night of 23 September 2003, landing there in the morning of
24 September 2003.
112. In Husayn (Abu Zubaydah) v. Poland (see § 312) Mr J.G.S. gave
the following account of the “final rendition circuit” through Poland
executed by the N313P plane, a Boeing 737, on 22 September 2003:
“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.”
113. The
Romanian
Civil
Aeronautical
Authority
(Autoritatea
Aeronautică Civilă Română – “RCAA”), in its letter of 29 July 2009
(“RCAA letter”) stated that N313P’s itinerary was: Szczytno Airport (which
is located in Szymany, Poland) – Constanţa Airport but the airport in
Romania at which it landed was Băneasa Airport in Bucharest (see also
paragraph 324 below).
114. The 2014 US Senate Committee 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 blackened]” (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
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AL NASHIRI v. ROMANIA JUDGMENT
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.”
C. The applicant
Romania from 12 April 2004 to 6 October or 5 November 2005 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 initial submissions
115. In his application lodged on 1 June 2012 the applicant submitted
that sometime between 6 June 2003 and 6 September 2006 Romania had
hosted a secret CIA prison, codenamed “Bright Light” and located in
Bucharest. The applicant’s rendition and secret detention were related as
follows:
“Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 2002.
By November 2002, he had been secretly transferred to the custody of the CIA. He
was held in various secret locations before being detained in Romania. US agents first
took him to a secret CIA prison in Afghanistan known as the ‘Salt Pit’. In
Afghanistan, interrogators subjected him to ‘prolonged stress standing positions’,
during which his wrists were ‘shackled to a bar or hook in the ceiling above the head’
for ‘at least two days’. US agents then took him to another secret CIA prison in
Thailand, where he remained until 5 December 2002. According to a United Nations
Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight
with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On
or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al
Nashiri from Poland. ...
After his transfer out of Poland, between 6 June 2003 and 6 September 2006
Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA
AL NASHIRI v. ROMANIA JUDGMENT
43
prison in Bucharest, Romania. He was transferred to Guantánamo Bay by
6 September 2006.”
As for the possible date of his rendition to Romania during the period
between 6 June 2003 and 6 September 2006 the applicant mentioned
22 September 2003, i.e. the date on which the aircraft N313P executed its
“final rendition circuit” through Poland, via Romania and Morocco (see
paragraph 115 above). In that regard, he referred to the 2007 Marty Report
(see also paragraphs 257-265 below), which had identified N313P as a
“rendition plane” and which, according to the flight plans of 22 September
2003 and the Romanian officials, had had as its destination Constanţa and
Bucharest.
116. In further observations filed by the applicant’s representatives on
26 April 2013, it was stated that he had been transferred to a CIA “black
site” in Romania on the plane N85VM from Guantánamo Bay to Bucharest
on 12 April 2004. It was explained that that fact had emerged from a dossier
submitted by Mr Hammarberg, the former Council of Europe’s
Commissioner for Human Rights, to the Prosecutor General of Romania
(see also paragraphs 334-336 below). The dossier and new information
about the applicant’s transfers in CIA custody had not been publicly
available earlier.
2. The applicant’s alleged rendition to Romania on the plane N85VM
on 12 April 2004
117. The above-mentioned dossier produced by Mr Hammarberg states
that on 12 April 2004 the applicant was transferred to the CIA “black site”
in Romania on the N85VM flight from Guantánamo Bay to Bucharest. It
further states that N85VM landed at 21h47m GMT on the night of 12 April
2004 and was assessed to have been bringing in CIA detainee(s) from the
US Naval Base, Guantánamo Bay via a technical stopover in Tenerife, with
a false – “dummy” – flight plan filed featuring Constanţa instead of its real
destination, which was Bucharest (see paragraphs 334-336 below).
118. The Romanian Government submitted a set of six documents
originating from the Romanian Airport Services (“RAS”) at Băneasa –
Bucharest City Airport, described as “annex no. 8” to the 2007 Romanian
Senate Report (see also paragraph 164 below), which were examined in the
course of the Parliamentary inquiry in Romania. They initially asked that
that the annex be treated as confidential. At the fact-finding hearing, the
Government submitted that they no longer wished the Court to maintain its
confidentiality (see paragraph 12 above).
The first document, invoice no. 386 dated 13 April 2004, was issued by
the handling agent of the RAS for Richmor Aviation and indicated an
amount charged of 1,255.00 euros (EUR) due for ground services (basic
handling, landing fee, lighting fee and navigation services) relating to the
N85VM landing.
44
AL NASHIRI v. ROMANIA JUDGMENT
The second document, ground handling note no. 0036904 dated 12 April
2004 indicated the same amount.
The third document was a copy of an Air Routing card issued for
Richmor Aviation.
The fourth document, air navigation services sheet no. 906 dated
12 April 2004 included navigation services charges. It indicated that
N85VM landed at Băneasa Airport at 21h50m on 12 April 2004 and
departed at 22h45m on the same day.
The fifth document was a partly illegible table containing landing fees
for several planes, including N85VM.
The sixth document – a control list of navigation records indicated,
among other things, the N85VM landing on 12 April 2004 at 21h47m.
119. In the course of the PowerPoint presentation Mr J.G.S. testified as
follows:
“...[T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our
investigations have provided evidence that this transfer took place directly from
Guantánamo Bay to the ‘black site’ in Bucharest, Romania. Again, the [US] Senate
Committee Report, albeit using code names, coloured code names for the sites in
question, describes explicitly where particular detainees were at particular times, and
in this passage highlighted, in describing the closure of the Guantánamo Bay facility
in the face of probable exposure due to a Supreme Court assessment of the legality of
their detention, it states that ‘by a date in April 2004, all five CIA detainees were
transferred from Guantánamo Bay to other CIA detention facilities’. The use of
‘facilities’ here in the plural is very important, because the principal destination for
those held by the CIA at Guantánamo was in fact back to the facility in Morocco from
whence they had come. However, as the Senate inquiry made clear, not all of those
held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April
2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa,
Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of
documentary evidence which I am prepared to provide to the Court, and in particular
this graphic demonstrates that there were two distinct transfers out of Guantánamo.
The first on 27 March 2004 carried detainees from Guantánamo back to Rabat,
Morocco. The second of these, which is of our principal interest, transported one or
more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania.
I have put together a graphic to illustrate that, once again, the CIA had recourse to
its systematic practice of disguised flight planning in respect of this flight. We reached
a point in our investigations, Madam President, where evidence of dummy flight
planning in fact became a tell-tale sign of rendition or detainee transfer activity on
such flights. So it is significant, as I will demonstrate, that this was not a simple
circuit. The aircraft embarked from Washington and flew to Guantánamo Bay,
whereupon the blue line demonstrates the first part of the detainee transfer from
Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the
aviation services provider, in this case Air Rutter International from Houston, Texas,
filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the
Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa
Airport, as documentation from the Romanian authorities demonstrates. It is this
flight, depicted here with the blue line, that carried Al Nashiri to detention in
Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is
apparent premise that one or more detainees from the Romanian site, detained prior to
AL NASHIRI v. ROMANIA JUDGMENT
45
April 2004, was at that point taken from Bucharest back to detention in Morocco, after
which the aircraft returned to its base at Washington D.C.
We have been able to uncover this and other flights planned through the network of
private contractors, thanks to a large amount of documentation filed in court
proceedings in civil courts in New York State, whereupon several US aviation service
providers, contracted to the CIA, ended up in a financial dispute. The case in question,
Sportsflight Inc. against [sic] Richmor Aviation, in fact concerns the CIA’s chief
aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a
prime aviation contractor known as Sportsflight Air, previously Capital Aviation,
which in turn subcontracted its government mandates to a private company called
Richmor Aviation, who were the owners and operators of the aircraft N85VM.
I appreciate that this web of corporate relations is quite difficult to understand on its
face, but over several years, myself and other investigators have carefully unpicked
these relationships to provide the direct link between the tasking of the United States
Government on government contracts through the CIA’s rendition group air branch,
all the way down to the pilots, crew members and operators of the aircraft in question.
It is unambiguously and categorically the case that these are rendition aircraft,
operated for the sole purpose of transferring detainees between ‘black sites’ in the
CIA’s RDI programme. The flight of N85VM, on the dates in question, belongs in
that category.”
120. As regards the circumstances surrounding the applicant’s transfer
from Guantánamo to Romania, Mr J.G.S. testified at the fact-finding
hearing as follows:
“The Guantánamo site operated only for a finite period. As I mentioned, it was due
to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush,
which was likely to expose CIA detainees to the same reporting obligations, but also
the same rights, that detainees in other forms of federal custody would enjoy, and so
the CIA deliberately took action to remove its detainees from such scrutiny in advance
of the Supreme Court ruling. The Senate Committee Report describes this process,
based upon cables and other classified material, and states that by April 2004, the date
I assert, 12 April 2004, all of those detainees who were held in Guantánamo were
moved out.
There were two flights, as I demonstrated, which formed part of this removal
process, the first on 27 March 2004, the second on 12 April 2004. But the first of
those only went to Rabat, Morocco, and if you recall, the Committee described, based
upon its assessment of interrogation schedules, that Mr Nashiri had been to five
different sites in that 3-year timeframe, and in order for him to be in five different
sites, he, at that moment, could not have gone back to Morocco, because there are not
sufficient documented instances of rendition which link the territories in question,
Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms
Mr Nashiri’s tour of the sites.
The 12th April 2004 site was the sole outward flight linking Guantánamo to
Romania. From the report, from the cables regarding Mr Nashiri’s treatment and
physical and psychological state, we know that he found himself in Romania in the
3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made
upon his state and status in those date frames. In order for him to have been in
Romania at Detention Site Black or ‘Britelite’ by that time, he had to be brought to
Romania on flight N85VM on 12 April 2004.
46
AL NASHIRI v. ROMANIA JUDGMENT
It is a process of elimination, but it is also a process of correlation, which very
clearly links to documents filed by contractors, corresponds with the international
aviation data that we have analysed, corresponds with the tactics of dummy flight
planning and disguise, and ultimately is validated in the public record by the Senate
Report.”
121. Mr Black, referring to the applicant’s alleged rendition to Romania
testified as follows:
“I am aware of two possible flights that could have taken the applicant Al Nashiri
into Romania, that [a flight with the tail number N85VM], is one of them. There is a
potential other one that occurred in February 2005. We know for a fact that he was in
Romania after February 2005, we know from cables referenced in the Senate Report
that he was in Romania in June 2005. There are indications that he was held in
Romania before that, in late 2004, which leads me, of the two possibilities, that leads
me to prefer the April 2004 flight as being the more likely of the two. In terms of my
own research, I would say that there is a small ambiguity on that point, I am not
prepared to say that the data I have at my fingertips conclusively demonstrates that he
was taken on the April flight in 2004 rather than the February one in 2005. I think the
balance of probability does lie in favour of that. However, whichever of the two it is,
there is no doubt that he was in Romania by the summer of 2005.”
3. Detention and treatment to which the applicant was subjected
122. 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.
123. On 15 June 2016 the US authorities disclosed to the public a
second, less redacted version of the transcript of the hearing held by the
Combatant Status Review Tribunal in Guantánamo on 14 March 2007 (for
the first, more extensively redacted version see Al Nashiri v. Poland, cited
above, §§ 112-113; see also paragraphs 142-143 below). During that
hearing the applicant described the treatment to which he had been
subjected in CIA custody from his capture in November 2002 to his transfer
to Guantánamo in September 2006. The relevant part of that transcript read,
as follows:
“From the time I was arrested five years ago, they have been torturing me. It
happened during interviews. One time they tortured me one way and another time
they tortured me in a different way.
By hanging, head was up and legs were pointing downwards. I was hung for almost
a month. You doing your things basically and you were hung upside down and
drowning and hitting at the wall. There are many scars on my head if I shave my head.
If I shave my hair the scars will become obvious.
What else do I want to say? I was without clothes. I was sleeping on the floor for
about a month. Many things happened. There were doing so many things. What else
did they did?
There a box half meter by half meter. It was two meters in height They used to put
me inside the box. I was standing in that box for about a week and I couldn’t do
anything. My feet were swollen. My nails were about fall off because, I was standing
AL NASHIRI v. ROMANIA JUDGMENT
47
on my feet for long time. They do so many things. So so many things. What else did
they did?
That thing lasted for about six month[s]. After that another method of torture began.
They use to put something in the food that use to make the body tired. Before I was
arrested I used to be able to run about ten kilometers. Now, I cannot walk for more
than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask
me questions and the investigator after that used to laugh. And, I used to answer the
answer that I knew. And, if I didn’t reply what I heard, he used to put something in
my food. And, after I ate it my body felt like, um, strange. After that he used to come
back and talk to me. He told you he put anything in the food. He used to deny that but
the camera was behind him. And; I would stand in front of the camera and he used to
tell you that because camera was on. He could not deny anything. You have to
acknowledge to what we are saying. And, I used to say acknowledge what? They used
to ask even political questions. One is the solution to the American problem in Iraq.
I’m not the American Foreign Minister to answer these questions. So they used to go
and put some stuff in my food. These things happen for more than two years. That
thing did not stop until here. So many things happened. I don’t in summary, that’s
basically what happened.
Then, the President of the Combatant Status Review Tribunal says:
Alright. Let me ask. So then since the time of capture 2002 until you came to
Guantánamo you experienced these types of events?
The applicant responds:
Yes.”
124. 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 Romania:
“I find myself somewhat more limited in my ability to describe specific forms of
treatment or interrogation techniques to which Mr Nashiri was subjected in Romania
than was the case in respect of Poland. And that is because of the natural evolution of
the detention cycles to which CIA detainees were subjected. In pursuit of what was
described as ‘live actionable intelligence’, the CIA developed its most stringent, harsh
interrogation plans for the earliest days and weeks of a detainee’s period in its
detention system. Usually, within one to three days of being apprehended, the chief of
base at the ‘black site’ in question would appeal to CIA headquarters for authorisation
to practise EITs, so called ‘enhanced interrogation techniques’. This was the case in
respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case
in respect of Khalid Sheikh Mohammed, this we know because of the Inspector
General’s reports. As soon as a detainee was in custody, in Abu Zubaydah’s case, was
fit enough to undergo interrogation, that plan would commence. We know that
Al Nashiri underwent twelve days of harsh interrogation in Thailand including the
waterboard, and we know that upon transfer to Poland, because he was assessed as
having withheld information or not been compliant, he was then subjected to an
intensive period of harsh interrogation during with multiple, unauthorised techniques
were used. Those were documented in the earlier proceedings [Al Nashiri v. Poland].
But there arrives a juncture in a CIA detainee’s detention at which his intelligence
value is assessed as lower, at which no further approval or authorisation is sought or
granted to practise these enhanced interrogation techniques, and in Al Nashiri’s case
we can only say that that point arrived sometime in 2003. Thereafter, it is, in my
assessment and according to the documentary record, unlikely that the CIA practised
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AL NASHIRI v. ROMANIA JUDGMENT
further unauthorised techniques or indeed concerted programmes of enhanced
interrogation on Mr Nashiri.
However, that is not to say that he was not subjected to abuse or indeed that the
conditions of his confinement did not amount to violations of the European
Convention. In respect of those two latter points, I would aver quite clearly that the
treatment did amount to violations of the Convention, purely by virtue of the
conditions in which he was held and because of the regular interventions made by
persons at the ‘black site’ to gratuitously abuse, punitively or otherwise, certain
detainees in their custody. I can give you analogous examples of how detainees were
treated in Romania. Hassan Ghul, for example: there is a lengthy description of his
having endured 59 hours of sleep deprivation, having been shaved and barbered,
stripped naked, placed in standing positions with his hands above his head. There are
descriptions of how, notwithstanding medical and psychological problems diagnosed
by professionals at the scene, he was subjected to further interrogation to the point of
enduring hallucinations. I could also cite the example of Janat Gul, a detainee for
whom the CIA sought authorisation to use the waterboard in Romania, an
unprecedented move, and who was subsequently subjected to an intensive period of
enhanced interrogation in the same site at which Al Nashiri was held. I could also cite
the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three
years and more into the programme, was subjected to the same litany of abusive
techniques in interrogating him as Al Nashiri and others had been subjected to in 2002
and 2003. And I could also cite, too, some memoranda produced by the CIA General
Counsel’s office in the material period in which Al Nashiri was held in Romania,
which described conditions of confinement, sensory deprivation as a matter of routine,
denial of religious rights, physical and psychological oppression, sleep deprivation as
a matter of course, notwithstanding whether a detainee is subject at that time, or not,
to EITs.
So whilst I cannot give the same level of specificity as I was able to present in
respect of Poland, I can aver with a high level of certainty that he endured ill-
treatment whilst held in Romania because, in my view, every one of those detainees
brought to Romania, held incommunicado, indefinitely, with no idea of their
whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often
beaten in the process, every one of those persons would have a legitimate claim under
our European Convention on Human Rights for violation of their personal integrity.”
125. Mr Black testified as follows:
“The question of precise types of treatment is, I would not say it is my specific
expertise. It is clear from the Senate Report and other sources that treatment in
Romania included very extreme sleep deprivation, which apparently led some of those
who suffered it to have very severe mental and physical problems, and it is clear also
that the applicant, Mr Nashiri, in particular when he was in Romania, was
experiencing serious, let’s say, psychological problems as a result of the treatment that
he had received. But my, and I should say also it is clear that around that time,
between 2003 and 2005, it is firmly on the record that there were a range of treatments
being applied to these people, that the enhanced interrogation techniques were being
applied, I think this has all been quite well documented, but it is not really my topic of
expertise, I would not say.”
126. Citing as a source two CIA cables of 23 May 2004, the 2014 US
Senate Committee Report states that “at one point Al Nashiri launched a
AL NASHIRI v. ROMANIA JUDGMENT
49
short-lived hunger strike that resulted in the CIA feeding him rectally” (see
also paragraph 158 below).
Referring to an email to Detention Site Black dated 30 October 2004 on
the subject “Interrogator Assessments/Request for Endgame Views”, the
report states that “an October 2004 psychological assessment of Al Nashiri
was used by the CIA to advance its discussions with National Security
Council officials on establishing an “endgame” for the [HVD] program”
127. The 2014 US Senate Committee Report further refers to the
applicant’s detention at Detention Site Black in June and July 2005 as
follows:
“In the final years of al-Nashiri’s detention, most of the intelligence requirements
for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the
DETENTION SITE BLACK chief of Base suspended even these debriefings because
it was ‘the very, very rare moment’ that al-Nashiri would recognize a photograph, and
because the debriefings often were the ‘catalyst’ for his outbursts.”
It also states, with reference to a cable of 5 July 2005, that in July 2005
CIA Headquarters expressed concern regarding Al Nashiri’s “continued
state of depression and uncooperative attitude”. Days later a CIA
psychologist assessed that the applicant was on the “verge of a breakdown”
(see also paragraph 158 below).
4. The applicant’s alleged rendition from Romania on 6 October or
5 November 2005
128. In his initial submissions the applicant submitted that no later than
6 September 2006 the Romanian authorities had assisted the CIA in secretly
transferring him from Bucharest to another CIA “black site”.
129. The experts gave two possible dates for the applicant’s rendition
from Romania: 6 October 2005 and 5 November 2005. According to them,
the latter date was the final closure of the CIA “black site” on Romania’s
territory, prompted by the publication of Dana Priest’s article “CIA Holds
Terror Suspects in Secret Prisons” suggesting that such prisons operated in
Eastern European countries on 2 November 2005 (see also paragraph 236
below).
130. In the course of the PowerPoint presentation Mr J.G.S. testified as
follows:
“In terms of [the Black Site in Romania’s] closure, it is stated in the [2014 US
Senate Committee Report] that after the publication of the Washington Post article,
that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ...
dated 2 November 2005, the authorities of this country demanded the closure of
Detention Site Black within a number of hours fewer than 100. We can see that from
the redaction, it does not state exactly how many hours, but it is no more than four
days. And in fact, as I described, 5 November 2005, using its practices of dummy
flight planning and a further disguise which I will demonstrate shortly, the CIA
transferred all of its remaining CIA detainees out of the facility within this time
50
AL NASHIRI v. ROMANIA JUDGMENT
period. Again, as stated, flights into and out of Romania correspond exactly with the
narrative described in the report.
It might be pointed out, in relation to this specific package, that in order for the
authorities of the host country to demand the closure of a detention facility, they must
have known of its existence. Furthermore, in light of the report in The Washington
Post, which went into intimate detail of the CIA’s operations including the forms of
ill-treatment and interrogation to which detainees therein were subjected, it follows
that the authorities of the host country of Detention Site Black – and let me be clear –
that is the authorities of Romania, must have known of the nature of operations
occurring on their territory.
The question has often been posed to us, Honourable Judges, if there were detainees
in Romania, how did they leave? There appeared to be no obvious direct flights out of
Romania in the critical period, October, November 2005, to any other detention site
we were aware of, and this was often put forward by representatives of the Romanian
authorities as a reason for decrying, for rejecting, for refuting the content of our
reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports].
We have, however, now ascertained how detainees were removed from Romania,
and this occurred in two tranches in the months of October 2005 and, as stated,
November 2005. I have chosen to illustrate the first of these transfers, which occurred
between 5 and 6 of October 2005, because it provides a further segue into detention
operations on the territory of another Council of Europe Member State, in this case
Lithuania.
The CIA used two tactics of deceit in order to provide these flights with the
maximum degree of cover, in order that they could not and would not be tracked,
traced or held to account. The first of those was its conventional dummy flight
planning, but the second of those was a novel tactic involving switching of aircraft.
This graphic will demonstrate how this was deployed on 5 and 6 October 2005,
involving two aircraft, namely N308AB and N787WH. The first of those aircraft is
depicted by red lines, the second by blue, on the graphic, the other symbols follow the
earlier pattern of drop-off, transfer and stopover points. The two planes arrived in
Europe, the first [N308AB] from provenance of Teterboro, New Jersey, the second
[N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first
flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which
would become the staging point for these operations. The first dummy flight plan,
filed by the CIA’s aviation services provider, stated a path for N308AB from
Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The
aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the
‘black site’ in Romania, whereupon it would collect detainees. Those detainees
referred to in the Senate Committee Report who were cleared from Romania in these
critical months were then taken from Bucharest to Tirana, to the staging point where
the other CIA aircraft had been waiting for a day in advance. In this staging point, in
an unprecedented manoeuvre, according to our investigations, detainees were
transferred from the first aircraft onto the second, together with members of the CIA
rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business
jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing
a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly.
Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from
Romania to Vilnius, Lithuania, thereby providing a link between two detention sites
on European territory. The aircraft then departed in their own respective directions,
the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft,
N308AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had
AL NASHIRI v. ROMANIA JUDGMENT
51
innovated yet another means, another layer of cover to obstruct proper accounting for
the illegal transfer of its detainees, but due to a process which Senator Marty referred
to as ‘la dynamique de la vérité’, we have been able, methodically and carefully, to
unpick these layers of secrecy and present to this Court what we believe is a truthful
and accurate accounting of operations in respect of these ‘black sites’.”
131. In his further testimony, in response to questions from the Court,
Mr J.G.S. added:
“There are two known and documented junctures at which CIA detainees at the
‘black site’ in Romania were removed from Romania. The first of those, I illustrated
with my last set of graphics, on 5 and 6 October, which took detainees from
Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The
second took place on 5 November 2005, within three to four days of the Washington
Post’s report, and at the insistence of the Romanian authorities, which took detainees
via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there
were only two CIA detention sites in active operation, that much is stated in the
Senate Report. Those were the sites known as ‘Violet’ and ‘Orange’: the former,
‘Violet’, in Lithuania, the latter, ‘Orange’, in Afghanistan. And so Al Nashiri, in all
likelihood and without any other information to refer to, was taken to one of those two
destinations on one of those two flights. Based upon my earlier rationale about the
five different facilities in which he was held, I would aver that it is more likely than
not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was
held there until onwards transfer in March 2006 to Afghanistan and subsequently on
to Guantánamo Bay. That would, logically, complete the number and nature of
detention experiences chronicled in the Senate Committee Report and other
documents released by the United States.”
132. Mr Black testified as follows:
“ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the
applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he
left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was
a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the
flight the following month in November 2005 was again a two-plane switch that took
prisoners from Romania into Afghanistan. I think there is an indication in the data that
we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which
should mean he was taken in October rather than November, but it is, I would not say
it is a hundred per cent clear, unambiguous. I would say it is an indication that seems
probable. There is no doubt that the flight in November signalled the end of the
Romanian site, I mean it came, I do not know, 72 hours after the existence of the site
had been revealed in The Washington Post, the government had demanded the site
shut down, the Senate Report is very clear that at that point everyone who was
remaining in Romania was shipped out to Afghanistan, so at that point, after the
5 November 2005, the CIA ‘black site’ programme was operating only in Lithuania
and in Afghanistan.”
133. The relevant section in the 2014 US Senate Committee Report
reads as follows:
“After publication of the Washington Post article, [REDACTED] Country
[REDACTED] demanded closure of DETENTION SITE BLACK within [two-digit
number REDACTED] hours. The CIA transferred the [number REDACTED]
remaining CIA detainees out of the facility shortly thereafter.”
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AL NASHIRI v. ROMANIA JUDGMENT
134. According to public Eurocontrol flight data based on, among other
things, the flight data entered by the Romanian authorities into the
Eurocontrol system, which was referred to by Mr J.G.S and Mr Black, the
flight circuit of October 2005 involving planes N308AB and N787WH and
the circuit of November 2005 involving planes N1HC and N248AB can be
described as follows.
135. As regards the circuit of 1-7 October 2005, executed by planes
N308AB and N787WH:
(a) Eurocontrol data shows N308AB filing a flight plan departing from
Teterboro, USA at 13:31 on 4 October 2005 with scheduled arrival time at
Bratislava, Slovakia at 22:58 the same day. On the following day it filed a
flight plan departing from Bratislava at 19:06 with scheduled arrival time at
Mihail Kogălniceanu International Airport, Constanţa, Romania at 20:41. It
then filed a plan departing 40 minutes later, at 21:21, from Băneasa
Bucharest City Airport. According to the experts, this indicated that the
scheduled trip to Constanţa was in fact a false flight plan, and that the plane
did not go to Constanţa, but rather to Băneasa. Leaving Băneasa it was
scheduled to arrive in Tirana, Albania at 22:38. It filed its next flight plan
from Tirana on 6 October at 01:08, with a scheduled arrival time in
Shannon, Ireland, at 04:22 (all times are Zulu (i.e. GMT)).
(b) Eurocontrol data shows that on 5 October 2005 at 00:45 N787WH
filed a flight plan departing from Keflavik, Iceland with scheduled arrival in
Tirana International Airport on the same day at 05:52. It then filed a flight
plan departing Tirana at 23:44 with scheduled arrival at Tallinn, Estonia the
following day at 02:26. It then filed a flight plan leaving 30 minutes later, at
02:56, not from Tallinn but from Vilnius International Airport, Lithuania,
with scheduled arrival in Oslo at 04:33 (all times are Zulu (GMT)).
Documents from Vilnius airport show that the plane landed in Vilnius at
01:54 Zulu / 04:54 local time, however, indicating that the scheduled trip to
Tallinn was in fact a false flight plan, and that the plane did not go to
Tallinn, but rather directly from Tirana to Vilnius (see also
Abu Zubaydah v. Lithuania, no. 46454/11, § 130, 31 May 2018).
As regards the circuit of 5-7 November 2005, executed by planes N1HC
and N248AB:
(a) Eurocontrol data shows that N1HC filed a flight plan to leave
Harrisburg International Airport, USA at 10:30 on 5 November 2005, with
scheduled arrival in Porto, Portugal at 16:58 the same day. It then filed a
flight plan to leave Porto at 17:59, with scheduled arrival at Mihail
Kogălniceanu International Airport, Constanţa, Romania at 21:45. Its next
flight plan shows it leaving Băneasa Bucharest City Airport 20 minutes
later, at 22:05, with scheduled arrival at Amman, Jordan that night at 00:21
on 6 November. This, according to the experts, indicated that the scheduled
trip to Constanţa was in fact a false flight plan, and that the plane did not go
AL NASHIRI v. ROMANIA JUDGMENT
53
to Constanţa, but rather to Băneasa. From Jordan it filed a flight plan to
depart Amman at 01:20 with arrival at Keflavik scheduled at 08:25.
(b) Eurocontrol data shows that N248AB filed a flight plan to leave
Malta International Airport on 5 November 2005 at 21:10 with scheduled
arrival in Amman at 23:49. It then filed a flight plan to leave Amman
66 minutes later, at 00:55 on 6 November, with arrival in Kabul scheduled
for 05:12. It filed a flight plan to leave Kabul 48 minutes later, at 06:00,
with arrival in Athens scheduled at 11:32 the same day.
136. The findings of the Lithuanian Parliament (Seimas) made in the
course of an inquiry concerning the alleged detention facilities in Lithuania
in 2010-2011 concerned, among other things, the flight N787WH landing in
Vilnius, en route from Tirana, on 6 October 2005 (see paragraph 332 below)
137. The list of 43 flights operated in 2001-2005 at the airports of
Constanţa, Băneasa and Otopeni submitted by the Government (annex
no. 11 to the 2007 Romanian Senate Report; see also paragraph 167 below)
included that of N1HC, which departed from Băneasa airport on
5 November 2005.
138. The list of twenty one “suspicious flights”, which was produced by
the Government, included N1HC executing a circuit “Harrisburg –București
Băneasa-Djibouti-Amman” that departed from Băneasa Airport on
5 November 2005 (see paragraph 327 below).
The invoice (no. 1692) for United States Aviation in respect of N1HC
issued by RAS on 6 November 2005 included a handwritten note:
“Middletown-Băneasa-Djibouti (?) (Amman?)”
D. The applicant
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
139. According the 2014 US Senate Committee Report, in “early
January 2006” the CIA was holding twenty-six detainees “in its two
remaining facilities, Detention Site Violet, in Country [name REDACTED]
and Detention Site Orange, in Country [name REDACTED]”.
The applicant, according to the experts, was taken to one of those sites –
Detention Site Violet located in Lithuania or Detention Site Orange located
in Afghanistan on one of the above-described plane-switching flights
circuits of, respectively, 1-7 October 2005 and 5-7 November 2005 (see
paragraphs 129-135 above).
140. The 2014 US Senate Committee Report states that the applicant
“was transferred to US military custody on September 5, 2006.”
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AL NASHIRI v. ROMANIA JUDGMENT
E. The applicant
the military commission from 6 September 2006 to present
141. On 6 September 2006 President Bush publicly acknowledged that
fourteen high-value detainees, including the applicant, had been transferred
from the HVD Programme run by the CIA to the custody of the Department
of Defense in the Guantánamo Bay Internment Facility (see also
paragraph 60 above).
1. Hearing before the Combatant Status Review Tribunal
142. On 14 March 2007 the applicant was heard by the Combatant
Status Review Tribunal, which purported to review all the information
related to the question whether he met the criteria to be designated as an
“enemy combatant” (i.e. an individual who was part of or supporting
Taliban or al-Qaeda forces, or associated forces that are engaged in
hostilities against the United States or its coalition partners, including one
who has committed a belligerent act or has directly supported hostilities in
aid of enemy armed forces). The hearing was closed to the public. The
applicant was not afforded legal counsel at this hearing. A “personal
representative” was appointed for him, but this person did not act as counsel
and the applicant’s statements to this representative were not privileged. He
did not have access to any classified evidence that was introduced against
him. Nor did he have the right to confront any of the accusations that were
introduced at this hearing.
143. According to a partially redacted transcript of that hearing, the
applicant stated that he “[had been] tortured into confession and once he
[had] made a confession his captors [had been] happy and they [had]
stopped torturing him”. He also stated that he had made up stories during
the torture in order to get it to stop (see also paragraph 123 above).
2. Trial before the military commission
144. On 30 June 2008, the US Government brought charges against the
applicant for trial before a military commission, including those relating to
the bombing of the USS Cole on 12 October 2000.
145. On 2 October 2008, counsel for the applicant filed a petition for a
writ of habeas corpus on his behalf in a federal district court of the District
of Columbia. That petition is apparently still pending to date with no
decision.
146. On 19 December 2008, the Convening Authority authorised the
Government to seek the death penalty at his military commission.
147. Immediately after the referral of charges, the defence filed a motion
with the military commission contesting the Government’s method of
transporting the applicant to legal proceedings in Guantánamo Bay on the
AL NASHIRI v. ROMANIA JUDGMENT
55
grounds that it was harmful to his health and violated his right to free and
unhindered access to his counsel.
148. Shortly after this motion was filed, the applicant’s arraignment –
which signified the start of his trial before a military commission – was set
for 9 February 2009.
149. On 22 January 2009 President Obama issued an Executive Order
requiring that all commission proceedings be halted pending the
Administration’s review of all detentions at Guantánamo Bay. In response
to this order, the Government requested a 120-day postponement for the
9 February 2009 arraignment.
150. On 25 January 2009 the military judge assigned to the applicant’s
military commission denied the Government’s request for postponement of
the trial. Moreover, the military judge ordered that a hearing on the defence
motion regarding the applicant’s transportation be held immediately after
the arraignment. In response to this order, the defence filed a notice that it
intended to introduce evidence of how he was treated while in CIA custody.
Hours after this notice was filed, on 5 February 2009, the
US Government officially withdrew charges from the military commission,
thus removing the applicant’s case from the military judge’s jurisdiction.
151. In March 2011 President Obama announced that he would be lifting
a 2-year freeze on new military trials for detainees at the US Naval Base in
Guantánamo Bay.
152. On 20 April 2011 United States military commission prosecutors
brought capital charges against the applicant relating to his alleged role in
the attack on the USS Cole in 2000 and the attack on the French civilian oil
tanker MV Limburg in the Gulf of Aden in 2002. The charges against him
included terrorism, attacking civilians, attacking civilian objects,
intentionally causing serious bodily injury, hazarding a vessel, using
treachery or perfidy, murder in violation of the law of war, attempted
murder in violation of the law of war, conspiracy to commit terrorism and
murder in violation of the law of war, destruction of property in violation of
the law of war and attempted destruction of property in violation of the law
of war. The applicant was designated for trial by military commission
despite the fact that the United States Government had previously indicted
two of his alleged co-conspirators for the USS Cole bombing – Jamal
Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal
court. The relevant indictment, filed on 15 May 2003 while the applicant
was secretly held in CIA custody in Poland, identified him as an unindicted
со-conspirator in the USS Cole bombing.
153. The military commission prosecutors announced that the capital
charges against the applicant would be forwarded for independent review to
Bruce MacDonald, the “convening authority” for the military commissions,
for a decision whether to reject the charges or to refer some, all or none of
them for trial before the military commission.
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AL NASHIRI v. ROMANIA JUDGMENT
154. On 27 April 2011 Mr MacDonald informed the US military defence
counsel for the applicant that he would accept written submissions against
the death penalty until 30 June 2011.
On 28 September 2011 the capital charges against the applicant were
approved.
155. The military commission hearing in the applicant’s case began on
17 January 2012. The first two days of the trial were devoted mostly to
pre-trial motions.
156. The proceedings against the applicant before the military
commission are pending.
According to a statement – “Remarks at Guantánamo Bay” issued by
Chief Prosecutor Mark Martins on 17 March 2017, a day before the military
commission convened to try Al Nashiri completed a pre-trial session to
resolve disputes regarding “outstanding legal and evidentiary issues”.
During the session, the Military Judge directed that the military commission
would be in session from 31 July to 4 August, from 11 to 29 September and
from 6 to 17 November 2017. He also announced that he planned to issue
soon a final discovery order as well as a trial order for 2018.
F. Psychological effects of the HVD Programme on the applicant
157. On 22 November 2013 the applicant’s representative produced a
psychological evaluation of the applicant by US government psychiatrists,
which had been conducted at the request of the US government. It states that
Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome.
158. In the 2014 US Senate Committee Report, in the chapter “CIA
Detainees Exhibit Psychological and Behavioral Issues”, it is stated that
psychological and behavioural problems experienced by CIA detainees,
who had been held in austere conditions and in solitary confinement, had
also posed “management challenges” for the CIA.
The section referring to the applicant reads as follows:
“... Abd al-Rahim al-Nashiri’s unpredictable and disruptive behavior in detention
made him one of the most difficult detainees for the CIA to manage. Al-Nashiri
engaged in repeated belligerent acts, including throwing his food tray, attempting to
assault detention site personnel, and trying to damage items in his cell. Over a period
of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and
complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched
a short-lived hunger strike, and the CIA responded by force feeding him rectally.
An October 2004 psychological assessment of al-Nashiri was used by the CIA to
advance its discussions with National Security Council officials on establishing an
‘endgame’ for the program.
In July 2005, CIA Headquarters expressed concern regarding al-Nashiri’s
‘continued state of depression and uncooperative attitude’. Days later a CIA
psychologist assessed that al-Nashiri was on the ‘verge of a breakdown’.”
AL NASHIRI v. ROMANIA JUDGMENT
57
G. Identification of locations of the colour code-named CIA
detention sites in the 2014 US Senate Committee Report by
experts
159. The experts heard by the Court identified the locations of the eight
colour code-named CIA detention sites (see paragraph 26 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
was identified as having been located in Romania (see also Abu Zubaydah
v. Lithuania, cited above, § 166).
H.
160. The 2014 US Senate Committee Report refers to “Detention Site
Black” in several sections concerning various events.
161. In chapter entitled “The CIA establishes ‘DETENTION SITE
BLACK’ in Country [REDACTED] and DETENTION SITE VIOLET in
Country [REDACTED]” the section referring to “Detention Site Black”
reads as follows:
“[REDACTED] The CIA entered into an agreement with the [REDACTED] in
Country [REDACTED] to host a CIA detention facility in [month REDACTED]
2002.
In [month REDACTED] 2003 CIA Headquarters invited the CIA Station in Country
[REDACTED] to identify ways to support the [REDACTED] in Country
[REDACTED] to ‘demonstrate to [REDACTED] and the highest levels of the
[Country [REDACTED] government that we deeply appreciate their cooperation and
support’ for the detention program. The Station responded with an $ [amount
REDACTED] million ‘wish list’ [REDACTED]; CIA Headquarters provided the
Station with $ [amount REDACTED] million more than was requested for the
purposes of the [REDACTED] subsidy. CIA detainees were transferred to
DETENTION SITE BLACK in Country [REDACTED] in the fall of 2003.
In August 2003, the U.S. ambassador in Country [REDACTED] sought to contact
State Department officials to ensure that the State Department was aware of the CIA
detention facility and its ‘potential impact on our policy vis-a-vis the Country
[REDACTED] government’. The U.S. ambassador was told by the CIA Station that
this was not possible, and that no one at the State Department, including the secretary
of state, was informed about the CIA detention facility in Country [REDACTED].
...
Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S.
military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country
[REDACTED] to seek information on CIA detention standards and interrogation
methods. In the fall of 2004, when [REDACTED] U.S. ambassador to Country
[REDACTED] sought documents authorizing the program, the CIA again sought the
intervention of Deputy Secretary Armitage, who once again made ‘strong remarks’ to
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the CIA about how he and the secretary of state were ‘cut out of the NSC [National
Security Council] clearance/coordination process’ with regard to the CIA program. ...
While it is unclear how the ambassador’s concerns were resolved, he later joined the
chief of Station in making a presentation to Country [REDACTED]’s [REDACTED]
on the CIA’s Detention and Interrogation Program. The presentation talking points did
not describe the CIA’s enhanced interrogation techniques, but represented that
‘[w]ithout the full range of these interrogation measures, we would not have
succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other
equally resistant HVDs’ The talking points included many of the same inaccurate
representations made to U.S. policymakers and others, attributing to CIA detainees
critical information on the ‘Karachi Plot’ the ‘Heathrow Plot’. the ‘Second Wave
Plot’, and the ‘Guraba Cell’; as well as intelligence related to Issa al-Hindi, Abu Talha
al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-
Tayyar. ...”
162. In chapter entitled “CIA Detainees Exhibit Psychological and
Behavioural Issues” reference is made to an email from an American
authority (name redacted) to “Detention Site Black”, dated 30 October 2004
on the subject: “Interrogator Assessments/Request for Endgame Views”,
which concerned Al Nashiri’s psychological assessment (see also
paragraph 158 above), which was used by the CIA in the framework of
discussions on establishing an “endgame” for the HVD Programme.
163. Chapter “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’” refers to the “Detention Site Black” as follows:
“In the fall of 2004, CIA officers began considering ‘end games’ or the final
disposition of detainees in CIA custody.
...
[REDACTED] In 2004, CIA detainees were being held in three countries: at
DETENTION SITE BLACK in Country [REDACTED], at the [REDACTED]
facility in Country [REDACTED], as well as at detention facilities in Country
[REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in
early 2005.
On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country
[REDACTED] sent the management of RDG an email expressing his concerns about
the detention site and the program in general. He commented that ‘we have seen clear
indications that various Headquarters elements are experiencing mission fatigue vis-a-
vis their interaction with the program, resulting in a ‘decline in the overall quality and
level of experience of deployed personnel’, and a decline in ‘level and quality of
requirements’. He wrote that because of the length of time most of the CIA detainees
had been in detention, ‘[the] detainees have been all but drained of actionable
intelligence’, and their remaining value was in providing ‘information that can be
incorporated into strategic, analytical think pieces that deal with motivation, structure
and goals’.
The chief of Base observed that, during the course of the year, the detention site
transitioned from an intelligence production facility to a long-term detention facility,
which raised ‘a host of new challenges’. These challenges included the need to
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59
address the ‘natural and progressive effects of long-term solitary confinement on
detainees’ and ongoing behavioral problems.”
164. According to the report, one of the high-value detainees, Abu-Faraj
al-Libi, was transferred to Detention Site Black on an unspecified (redacted)
date in May 2005 and was subjected to EITs starting from 28 May 2005.
The section concerning the closure of Detention Site Black after
publication of the Washington Post article (see paragraph 236 below) is
rendered in paragraph 133 above.
I. Parliamentary inquiry in Romania
165. On 21 December 2005, by virtue of the Decree of Romania’s
Senate of 21 December 2005 (published on 27 December 2005) the
Romanian Parliament set up the Inquiry Committee for investigating
statements regarding the existence of CIA detention facilities or of some
flights of planes leased by the CIA on the territory of Romania (Comisia de
anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre
de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe
teritoriul României) (“the Romanian Senate Inquiry Committee”). It
comprised eleven members and was presided over by Ms N. Nicolai. The
report of the Romanian Senate Inquiry Committee (“the 2007 Romanian
Senate Report”) was published in the Official Monitor on 7 May 2008. The
annexes attached to the report remained classified.
166. The 2007 Romanian Senate Report explained that the committee
had been established “following the request of Mr Rene van der Linden, the
President of the Council of Europe Parliamentary Assembly (PACE),
formulated in the speech held in the assembly of the united chambers of
Romania’s Parliament on 24 November 2005, to investigate the accusations
published in the international press regarding the detention and illegal
transfer of prisoners in some of the member states of the Council of
Europe”.
The terms of reference were defined as follows:
“According to Article 1 of the Decree of Romania’s Senate no. 29 of 21 December
2005, the Inquiry Committee was charged with investigating statements regarding the
existence of some CIA detention facilities on the territory of Romania or of some
flights of some planes leased by CIA, that would have allegedly transported persons
accused of having performed terrorist acts”.
The initial deadline for presenting a report by the committee was fixed
for 15 February 2006 but, given the complexity of the issues involved, that
term was eventually extended until 5 March 2007.
167. From January 2006 to January 2007 the Romanian Senate Inquiry
Committee held periodic meetings, usually on a monthly basis and carried
out some fact-finding missions. According to the 2007 Romanian Senate
Report, the committee held twenty-one meetings “for documentation review
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and analysis with the leaders of institutions and specialised structures” and
over forty meetings with official delegations and members of the Council of
Europe’s inquiry body, other politicians and journalists. It heard over 200
persons and studied over 4,200 pages of documents. Its delegates also made
six visits to the airports and military airbases susceptible to have been used
for secret detentions and illegal prisoners’ transfers, including Timișoara-
Gearmata; Bucharest-Băneasa; Constanţa-Mihail Kogălniceanu; Tulcea-
Cataloi and Fetești-military.
Based on the in situ investigations, the Romanian Senate Inquiry
Committee found no facility built at the material time (2003-2005) that
might have been used as a detention facility, “be it ad hoc”. Also, it
concluded that no flight that had passed through Mihail Kogălniceanu
airport would raise suspicions of the illegal transport, embarking or
disembarking of any passenger.
168. As regards “suspicious flights” in respect of which Senator Marty
asked the Romanian authorities for all available evidence in his letter on
7 November 2006, the findings read, in so far as relevant, as follows:
“Regarding flight N313P of 25 January 2004, the Committee established that that
flight landed on the Airport Bucharest-Băneasa for refuelling and ground services. No
passenger embarked or disembarked the plane. There is all evidence that shows
beyond this fact, but also the purpose of the stopover. ...
Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the
information provided by the Romanian Civil Aeronautical Authority, according to
which, on 25 January 2004, its destination airport was Timişoara, not Bucharest -
Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he
verified this fact. ...
We would like to mention that the initial information provided by the Romanian
Civil Aeronautical Authority (RCAA), regarding the landing on the International
Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that
RCAA had access only to the flight plan sent by the operator of the aircraft. The flight
plan was modified by the operator in the air, requesting the stop on the International
Airport Bucharest-Băneasa.
At that date, according to the Romanian legislation, the operators who performed
private flights in the national airspace were not under any obligation to request from
request from RCAA any overflight authorisation, since it was sufficient to submit the
flight plan to the traffic body. ...
For N313P of 22-23 September 2003 (classified appendix no. 4):
- copy of the extract of the navigation chart ROMATSA associated with the Airport
Băneasa, in which the real route of the flight is indicated;
- copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight
N313P, issued by the handling agent of the Romanian Airport Services.
Flight N478GS of 6 December 2004, which had an accident while landing at the
Airport Bucharest-Băneasa, is suspected of being involved in a circuit that would have
transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick
Marty in April 2006.
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61
The event had the following development: On 6 December 2004, at 1:29 PM, the
aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was
performing a charter flight on the route Bagram/Afganistan-Bucharest/Băneasa,
landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07,
with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded
the available speed for landing ... and the delayed threshold of the runway, in an area
of the runway where the airport was carrying on maintenance works ... .The aircraft
rolled with the main left jamb on an unpaved portion with a depth of approximately
15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of
fuel from the left wing. The aircraft experienced damages on the left jamb of the main
landing train and on the fuel tank in the left plan(classified appendix no. 5). ...
Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that
the Romanian Civil Aeronautical Authority indicates the route Prague-Constanţa -
Băneasa-Amman. In reality, the flight took place on the route Prague-Bucharest
Băneasa-Amman, according to invoice no. 3.314 of 25 October 2003, issued by
ROMATSA (classified appendix no. 6).
Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport
Mihail Kogălniceanu, but in Airport Bucharest–Băneasa (classified appendices no. 7
and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated
on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10).
The appendix to Mr. Dick Marty’s letter of March 31, 2006 requests details
regarding 43 flights. The Inquiry Committee presents them in classified appendix
no. 11.”
169. The final conclusions of the 2007 Romanian Senate Report were
formulated as follows:
1. To the question whether there is or there were American secret detention sites in
Romania, the answer is negative.
2. To the question whether in Romania, during the investigated period, there exist
or existed facilities for detaining prisoners, other than penitentiary ones (real, secret,
ad-hoc, buildings that were used for this purpose on an improvised basis, potentially
in the proximity of airports Timişoara, Bucharest – Henri Coanda or Băneasa, and
Constanţa, the Inquiry Committee’s answer is negative.
3. To the question whether there are or there were detainees with or without records
held in the Romanian penitentiary system, who could have been assimilated with
prisoners, the Inquiry Committee’s answer is negative.
4. To the question whether there could have been clefts in the complete control
system of the civil or military traffic or whether some flights could have passed
inadvertently without being monitored or unrecorded or if in their cases the ground
procedures stipulated in the international conventions could have not been applied, the
Inquiry Committee’s answer is negative.
5. To the question whether it could have been possible that certain Romanian
institutions in Romania would have participated knowingly or by omission or
negligence in operations of illegal transport of detainees through the airspace or
airports in Romania, the Inquiry Committee’s answer is negative.
6. To the question whether civil American flights or other states’ civil flights could
have transported, dropped, or picked up persons that could be assimilated to the
detainees on the Romanian territory or under the responsibility of Romanian
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authorities, in compliance with international regulations, the Inquiry Committee’s
answer is negative.
7. To the question whether there existed an in-depth parliamentary investigation to
determine the media allegations regarding the existence of some detention facilities or
of some flights with illegal prisoners in Romania, the Investigation Committee’s
answer is positive.
8. To the question whether the purpose of the stopovers in Romania of the flights
referred to in chapter 5, the Inquiry Committee has solid grounds to reply that they
had nothing to do with potential illegal transports of prisoners on the territory of
Romania.”
170. On 13 October 2008, in reply to a letter by APADOR-CH
concerning the purpose of the flights mentioned by the report cited above,
the President of the Romanian Senate stated:
“... the Inquiry Committee was assigned to investigate the statements regarding the
existence of CIA detention facilities or of some flights of planes leased by CIA on the
territory of Romania.
Consequently, since its mandate was strictly limited to the aforementioned issue, the
Inquiry Committee did not request data from appropriate institutions, did not perform
any investigation, and does not hold any kind of information regarding the purpose of
the flights with the indication mentioned in chapter 5, point 3. ...”
J. Criminal investigation in Romania
171. On 29 May 2012 the applicant’s lawyer filed a criminal complaint
(plângere penală) on his behalf with the Prosecutor General, asking for an
investigation into circumstances surrounding the applicant’s rendition,
secret detention and ill-treatment in Romania to be opened. It was submitted
that the Romanian authorities had allowed the CIA to subject the applicant
to torture and unlawful, incommunicado detention on Romanian territory
and to transfer him out of the country despite the risk of his facing further
torture, unacknowledged detention and death penalty. He relied on
Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of
Protocol No. 6 and maintained that the conduct of the Romanian authorities
constituted offences of, inter alia, aiding and abetting murder, torture and
ill-treatment as defined in the Romanian Criminal Code.
172. On 20 July 2012 the Prosecutor General acknowledged that the
complaint had been registered and assigned a file number, and that its
review was at a preliminary stage.
Some time afterwards, on an unspecified date, the prosecution authorities
opened an investigation concerning the applicant’s allegations.
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1. Submission by the Government of confidential documents from the
investigation file
173. At the Court’s request, the Government submitted various materials
concerning the investigation asking, under Rule 33 § 2 of the Rules of
Court, for public access to those documents to be restricted, in the interests
of national security and also on the grounds of secrecy of the investigation
(see also paragraph 12 above). Those materials included transcripts of
witness evidence obtained in the investigation. They were produced in the
Romanian language, with an English translation. The English version is
rendered in paragraphs 299-325 below.
All these documents were available to the Court and the applicant in full,
unredacted versions. The following description of the course of the
investigation is based on a summary (redacted version) of annexes
containing documents from the investigation file produced by the
Government. That summary was prepared by the Government in the English
language.
2. The course of the investigation according to documentary evidence
produced by the Government
174. On 3 December 2012 the investigating prosecutor analysed the
applicant’s complaint and its context, including laws and arrangements
regarding bilateral agreements between Romania and the United States and
information in the public domain concerning the applicant’s allegations.
Also, an initial investigation plan was prepared on that date. The plan
included a list of requests for information, clarifications, documents, audio
and video recordings and flight data to be addressed to various domestic
authorities – among others, the Civil Aviation Authority, Air Traffic
Services Administration, Otopeni, Kogălniceanu and Băneasa airports, the
Government and the relevant ministries.
175. On 27 December 2012 the Prosecutor’s Office attached to the Court
of Cassation (Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție –
“PICCJ”) asked the RCAA to provide, in connection with the investigation
the following information concerning certain flights mentioned in an annex
to the request (the annex has not been produced):
(a) any data, information, documents held with regard to the air traffic
control in respect of the flights in question;
(b) any audio or video recordings concerning the flights in question (for
example: air traffic control or directing);
(c) names of individuals who had carried out specific tasks on the dates
when the flights in question had allegedly taken place;
(d) names of individuals directly involved in facilitating or operating
those flights.
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AL NASHIRI v. ROMANIA JUDGMENT
176. On 12 January 2013 the RCAA informed the PICCJ that, according
to the relevant legislation in force at the relevant time (2003-2005), namely
Government Decision no. 1172/2003, they had data concerning only a few
flights – which they included in an annex (the annex has not been
produced).
The RCAA stated that the available data did not clearly show that these
flights had taken place and that they did not have any documents which
attested that the flights had actually taken place. According to the legislation
in force at the material time, information in the RCAA’s possession showed
only an intention to operate the flights, which had been planned and notified
to them.
It further stated that Government Decision no. 1172/2003 had eliminated
the need for the RCAA to approve flights which transited the national
airspace with no commercial stop (and did not carry troops, military
equipment, weapons, munitions, explosives, radioactive or other dangerous
materials or did not fall in the category of technical flights) and, also,
internal and international flights with civil aircraft registered abroad,
landing and taking off from the Romanian territory, which were included in
the category of civil air operations of general aviation. These flights were
considered authorised if a flight plan on a published ATS (Air Traffic
Service) route was submitted and the aircraft used were insured for damage
caused to third parties on the ground.
As regards audio or video recordings and names of any individuals
involved, the RCAA stated that they did not have any such information.
177. In addition, the Government produced copies of the following
prosecutor’s letters requesting information or documents from various
authorities:
(1) letter of 27 December 2012 addressed to the Romanian Government,
asking for the classified annexes to the 2007 Romanian Senate Report;
(2) letters of 27 December 2012 addressed to Timişoara Airport,
Constanţa Mihail Kogălniceanu Airport and Bucharest Băneasa Airport,
requesting information about the alleged suspicious flights, including audio
or video recordings, and about the airport personnel who had worked on the
relevant dates;
(3) letter of 3 March 2013 addressed to the Ministry of Transport and
Infrastructure, requesting it to the transmit the National Programme of
Aeronautical Security to the prosecutor;
(4) letters of 18 March 2013 addressed to the Civil Aviation Directorate
and the Bucharest Airports National Company requesting information about
flights N313P, N85VM, N379P, N478GS, N228KA, N308AB, N789DK,
N227SV, N787WH, N1HC, N2189M and N860JB, including general flight
data from 2003-2006, types and purposes of flights, type of journey, flight
route, flight operator, flight organiser, aircraft type, aircraft capacity, aircraft
registration, documents regarding insurance, information about the crew and
AL NASHIRI v. ROMANIA JUDGMENT
65
passengers, initial flight plans, subsequent flight documents, flight or
overflight authorisations, specific requests for each flight and handling
operator;
(5) letter of 24 April 2013 addressed to the Bucharest Airports National
Company, requesting information about applications for authorisation of
access of persons and vehicles to the airplanes, the relevant records,
information about the security personnel and the handling agents who had
worked on the relevant dates at Bucharest Băneasa Airport and at Constanţa
Mihail Kogălniceanu Airport;
(6) letter of 24 April 2013 addressed to the General Inspectorate of the
Border Police, requesting information about the personnel who had worked
on the relevant dates and any persons who entered, exited or transited the
national territory on those dates through Bucharest Băneasa Airport and
Constanţa Mihail Kogălniceanu Airport;
(7) letter of 29 April 2013 addressed to the Romanian Airport Services
(“RAS”), requesting information about the personnel who had worked on
the relevant dates and the handling operations performed.
178. On an unspecified date, in response to the prosecutor’s request, the
Ministry of Transport-Civil Aviation Directorate provided the following
documents:
- flight plans of N312ME on 24 April 2003, N175A on 5 May 2003,
N58AS on 16 June 2003, N313P on 22 September 2003, N313P on
25 January 2004 and N227SV on 1 October 2004;
- control lists of the navigation records;
- tables containing handling fees;
- invoices issued by the RAS;
- ground handling charge notes;
- air navigation services sheets;
- address no. 6 293 of 4 November 2006 issued by Timișoara Airport
informing that, after checking their records, there was no evidence of the
landing of the flight N313P operated by Business Jet Solutions. It was also
mentioned that the said aircraft had not carried out any flights on Traian
Vuia Airport – Timișoara until 14 November 2006.
- list of flight plans;
- letter no. 239 of 25 March 2013 from the Bucharest Airports National
Company, transmitting all relevant information identified in their archives
and informing the prosecution that from 2004 to 2005 in Bucharest Băneasa
Airport the RAS was in charge of the handling services. The letter also
mentioned that the flights concerned had not been identified as having
operated at Henri Coandă Airport.
- letter no. 2183 of 22 March 2013 from Constanţa Mihail Kogălniceanu
Airport confirming, among other things, that N308AB had operated in that
airport and that it had landed on 25 August 2004 at 00:03, and departed on
25 August 2004 at 01:33;
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AL NASHIRI v. ROMANIA JUDGMENT
- letter no. 3461 of 13 June 2006 from Constanţa Mihail Kogălniceanu
Airport, confirming that the aircraft Lockheed L382 registered as N2189M
had operated at that airport, landing on 13 June 2003 at 09:57, departing on
14 June 2003 at 08:31 and that the aircraft Gulfstream IV registered as
N227SV had operated in the airport, landing on 1 October 2004 at 20:39
and departing at 21:26 on the same date.
179. On 26 April 2013 the Bucharest Airports National Company
replied to the prosecutor’s request of 18 March 2013. The company stated
that it did not have information about general flight data concerning the
indicated aircraft in the period 2003-2006, the purpose of the flights, type of
journey, flight organiser, aircraft capacity, any documents regarding
insurance, information about the crew and passengers, initial flight plans,
subsequent flight documents, flight or overflight authorisations or
information about handling requests. It informed the prosecutor that the
flight plans had been received through the AFTN terminal and had not been
subject to archiving and that the RAS had been the handling operator in
2003-2006 at Bucharest Băneasa Airport. A table containing information
about the relevant flights was transmitted to the prosecutor.
180. On 21 May 2013 the Bucharest Airports National Company replied
to the prosecutor’s request of 24 April 2013. The company transmitted the
requested information about the applications for access authorisation to the
planes and the relevant records. It also explained to the prosecutor that since
the retention periods for the requested documents were from three to five
years, it was impossible for it to produce any additional information about
the requests for authorisations and the access records. The company also
produced information concerning the security personnel who had worked on
the relevant dates.
181. On 20 May 2013 the General Inspectorate of the Border Police
replied to the prosecutor’s request of 24 April 2013. It forwarded a list
containing the names, personal data and the present workplace of the
personnel who had worked on the relevant dates. It also informed the
prosecutor that flight logs had automatically been erased after five years and
that, as a consequence, they could not submit the requested information
about the persons who had entered, exited or transited the national territory
on those dates at Bucharest Băneasa Airport.
182. On 11 July 2013 the General Inspectorate of the Border Police
supplied information concerning the personnel who had worked at
Bucharest Băneasa Airport on 22 September 2003 and their personal data.
183. On 13 June 2013 the RAS replied to the prosecutor’s request of
29 April 2013. The RAS informed the prosecutor about the personnel who
had worked on the relevant dates and transmitted several tables containing
handling fees. They also stated that information about the handling services
performed had been retained only for three years.
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67
184. In the meantime, on 24 April 2013, the prosecutor asked the
Ministry of National Defence (Ministerul Apărării Naționale) to produce,
on an urgent basis, the following information concerning the period of
2003-2006:
(a) military flights carried out by US military aircraft or civilian flights
carried out by the US air companies, which concerned “the transfer of
individuals within the framework of the USA Special Rendition Program”
and which had had as a point of transfer, transit or destination “airports on
Romania’s territory”;
(b) existence or non-existence, on Romania’s territory, of alleged
detention facilities set up at the US authorities’ or the US forces’ request
and their possible location, including names of legal persons hosting them;
(c) detention, interrogation, and subsequent transfer of individuals in the
US forces’ or the US authorities’ custody from the alleged detention
facilities to other locations;
d) names of persons who had been subjected to such treatment.
185. On 24 May 2013 the Ministry of National Defence replied that the
requested materials were part of documents sent to the Romanian Senate
Inquiry Committee by a note of 31 March 2006, which was classified as
“confidential information”. The Ministry stated that they did not have a
copy of those documents, that the documents had been sent to the
committee in a single copy (exemplar unic) and that they had not yet been
returned to them. Moreover, the provision of information concerning civil
aircraft which had operated in the Romanian airspace and in the Romanian
international civilian airports fell within the competence and responsibility
of the relevant departments attached to the Ministry of Transport.
The Ministry further stated that, by their letter of 9 May 2008, sent to
M. Constantinescu, a State councillor attached to the Prime-Minister’s
office, they had agreed that documents classified “confidential information”
be sent to the European Commission.
Moreover, the Air Force General Staff (Statul Major al Forțelor Aeriene)
had stated that it had not had any records of flights operating in the airspace
or in the military airports between 2003 and 2006 and transferring
individuals in the framework of the US rendition programme; moreover, the
representatives of the US authorities had not had access to buildings or air
facilities belonging to air bases subordinate to the Air Force or exclusive
access to certain areas.
Lastly, the Ministry stated that the General Information Agency of the
Defence (Direcția Generală de Informații a Apărării) had no information
about the existence of secret US bases in Romania, about individuals
allegedly detained illegally in Romanian prisons, their interrogation or
transport to and from Romania by unmonitored or unauthorised flights.
186. On 24 January 2014 the PICCJ asked the Service for International
Judicial Cooperation, Programs and International Relations to forward a
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request for legal assistance (including 4 annexes) to the relevant US judicial
authorities. In the letter of request, the prosecutor asked the US authorities
to provide, in connection with the criminal investigation, information
concerning, among other things, the period and circumstances of
Mr Al-Nashiri’s arrest and detention, the proceedings against him instituted
by the US authorities; whether Mr Al-Nashiri had ever been brought to
Romania in the context of his detention imposed by the US authorities
under the CIA rendition programme and whether Romania had potentially
been involved in that programme. The prosecutor also asked for the date of
his arrival on Romanian territory, the means of transport used, the place of
his detention on Romanian territory; the date of his departure from
Romania, the means of transport used and the relevant documents and
whether the Romanian authorities had been aware of his stay in the country.
187. On an unspecified date in March 2014 the US Department of
Justice replied to the letter of request, stating that the US authorities were
not able to provide the information requested.
188. In the meantime, on 27 February 2014, following the entry into
force of the new Romanian Criminal Code and Code of Criminal Procedure
(see also paragraph 196 below), the prosecutor had re-analysed the
applicant’s criminal complaint in the light of the new legislation and
decided that the investigation should also include crimes of unlawful
deprivation of liberty and torture.
189. In the course of the investigation, in 2013 and 2015, the prosecutor
took evidence from witnesses, including some high-office holders. It also
heard other officials, the Border Police officers and the airport staff,
including the security personnel. The Government produced transcripts of
evidence given by certain witnesses (see paragraphs 298-325 below).
190. The investigation, apparently still directed against persons
unknown, is pending.
V. RELEVANT DOMESTIC LAW
A. Criminal Code
1. Territorial jurisdiction
191. Article 3 of the old Criminal Code, as applicable until 31 January
2014, read as follows:
“Romanian criminal law shall apply to offences committed on the territory of
Romania”
192. On 1 February 2014 the new Criminal Code entered into force.
Article 8 § 1 of the new Criminal Code is phrased in the same terms.
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2. Prohibition of torture and offence of unlawful deprivation of liberty
193. The prohibition of torture was set forth in Article 267 of the old
Criminal Code and, since 1 February 2014 (with minor changes of the
wording), has been included in Article 282 of the new Criminal Code.
Penalties applicable remained the same. The crime of torture is liable to
sentence of imprisonment from two to seven years. In cases where a bodily
harm has been caused to the victim, the sentence ranges from three to ten
years’ imprisonment. If torture resulted in the victim’s death, the sentence
ranges from fifteen to twenty-five years’ imprisonment.
194. The offence of unlawful deprivation of liberty was defined in
Article 189 of the old Criminal Code and was liable to a sentence of
imprisonment ranging from three to ten years’ imprisonment. At present, it
is defined in Article 205 of the new Criminal Code and is liable to a
sentence ranging from one to seven years’ imprisonment.
B. Code of Criminal Procedure
195. In general, an offence must be prosecuted by the authorities of their
own motion. Exceptions include only a few offences which cannot be
prosecuted without a prior request (plângere prealabilă) from a victim or
from a specific authority (e.g. certain military offences). A criminal
investigation may also be opened following a criminal complaint from the
victim or notification of an offence by any physical or legal person who has
become aware that such offence has been committed.
196. Article 221 of the old Code of Criminal Procedure (“old CCP”) as
applicable until 1 February 2014 read, in so far as relevant, as follows:
“A criminal investigation authority [shall institute an investigation] if it has been
informed of commission of an offence by a criminal complaint or notification of
commission of an offence, or it shall [take action] of its own motion, when it has
discovered by other means that an offence has been committed.
Where, according to the law, a criminal investigation can only be opened following
a prior complaint, notification or authorisation of an authority provided for by law,
such investigation shall not be instituted in their absence. ...”
A criminal complaint was defined as a notification of the commission of
an offence submitted by a person or institution having sustained damage as
a result of an offence. Notification of an offence could be made by any
person or institution.
197. Following the entry into force of the New Code of Criminal
Procedure (“new CCP”), the Article 221 was repealed and replaced by
current Article 292 which reads as follows:
“A criminal investigation authority shall take action of its own motion if it learns
(afla) about commission of a criminal offence from any source other than those
referred to in Articles 289-291 [in particular, criminal complaint and notification of
the commission of an offence] and shall draw up a report in this regard.”
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A criminal complaint is defined in Article 289 of the new CCP as
“information laid by an individual or legal entity concerning damage
sustained thereby as a result of a criminal offence”. Notification of the
commission of an offence is defined in Article 290 as a notification
submitted by any individual or legal entity.
VI. RELEVANT INTERNATIONAL LAW
A. Vienna Convention on the Law of Treaties
198. Articles 26 and 27 of the Vienna Convention on the Law of
Treaties (23 May 1969), to which Romania is a party, provide as follows:
Article 26
“
“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
199. Article 7 of the International Covenant on Civil and Political Rights
(“ICCPR”), to which Romania 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.”
200. 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 UN Torture Convention
201. One hundred and forty-nine States are parties to the 1984 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
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
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71
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.”
202. 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.”
203. Article 12 provides that each State Party must 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
204. 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:
(a) that of being commanded by a person responsible for his subordinates;
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AL NASHIRI v. ROMANIA JUDGMENT
(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.
...”
205. 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.”
206. 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.”
207. 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
208. Article 3 of the Geneva (IV) Convention 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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73
(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.”
209. 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
210. The relevant parts of the Draft 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
211. 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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“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 IN 2002-2005 AND
HIGHLIGHTING CONCERNS
VIOLATIONS ALLEGEDLY
DETENTION FACILITIES
AS
OCCURRING
TO
HUMAN
IN
AFTERMATH
RIGHTS
US-RUN
OF
IN
THE
11 SEPTEMBER 2001
212. The applicant and third-party interveners 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
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
213. 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
214. 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
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importance of redress for victims. The Commission on Human Rights
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)
215. 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
216. 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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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
217. 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
218. 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
219. This report referred to the article in The Washington Post: “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 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
220. 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
221. 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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“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
222. 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
223. 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
224. 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.”
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9. International Committee of the Red Cross, United States: ICRC
President urges progress on detention-related issues, news release
04/03, 16 January 2004
225. The ICRC expressed its position as follows:
“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
226. On 6 November 2005 the 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 two 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 234 below).
227. 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
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81
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.
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
228. On 30 November 2005 the 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.
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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.
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. ...”
VIII. SELECTED MEDIA REPORTS AND ARTICLES
229. The applicant and third-party interveners submitted a considerable
number of articles and reports published in international and Romanian
media, which raised concerns about alleged rendition, secret detentions and
ill-treatment in US-run detention facilities for terrorist-suspects captured in
the context of the “war on terror”. They also submitted materials concerning
allegations of the CIA having a secret detention facility in Romania and
rendition flights operating on Romanian territory. A summary of most
relevant sources is given below.
A. International media
230. 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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83
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. ...”
231. 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.”
232. 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 Guantánamo 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.”
233. 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 Guantánamo 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 Guantánamo Bay, Cuba, or
transferred to a third country.”
234. 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.
235. On 28 February 2005 the Newsweek published an article by
M. Hirsch, M. Hosenball and J. Barry, entitled “Aboard Air CIA”, stating
that the CIA ran a secret charter service, shuttling detainees to interrogation
facilities worldwide. While the article mainly gave an account of
Mr El-Masri capture, rendition, secret detention and further plight in CIA
hands, Romania was for the first time mentioned as a transit country for the
CIA planes suspected of transporting terrorist-suspects in the context of the
flight N313P, Boeing 737, its rendition mission of 16-28 January 2004 and
landing in Romania (see also paragraphs 326-328 below). It also stated:
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“...NEWSWEEK has obtained previously unpublished flight plans indicating the
agency has been operating a Boeing 737 as part of a top-secret global charter
servicing clandestine interrogation facilities used in the war on terror. And the
Boeing’s flight information, detailed to the day, seems to confirm Masri’s tale of
abduction. ...
The evidence backing up Masri’s account of being ‘snatched’ by American
operatives is only the latest blow to the CIA in the ongoing detention-abuse scandal.
Together with previously disclosed flight plans of a smaller Gulfstream V jet, the
Boeing 737’s travels are further evidence that a global ‘ghost’ prison system, where
terror suspects are secretly interrogated, is being operated by the CIA. Several of the
Gulfstream flights allegedly correlate with other ‘renditions’, the controversial
practice of secretly spiriting suspects to other countries without due process. ...”
236. 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
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
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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
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.
...
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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. ...”
237. 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 and Mr Abu Zubaydah. This report was available on
the Internet for only a very short time; it was withdrawn from ABC’s
webpage shortly thereafter following the intervention of lawyers on behalf
of the network’s 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.
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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.
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 Zabayda 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. ...”
238. On 8 December 2011 The Independent published an article written
by A. Goldman and M. Apuzzo, entitled “Inside Romania’s secret CIA
prison”. The article suggested that the building used by the National
Registry Office for Classified Information (Oficiul Registrului Naţional al
Informaţiilor Secrete de Stat – “ORNISS”) had hosted the CIA secret
detention site in Romania. The relevant parts read:
“In northern Bucharest, in a busy residential neighbourhood minutes from the heart
of the capital city, is a secret the Romanian government has long tried to protect.
For years, the CIA used a government building — codenamed ‘Bright Light’ — as a
makeshift prison for its most valuable detainees. ...
The existence of a CIA prison in Romania has been widely reported, but its location
has never been made public. The Associated Press and German public television ARD
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located the former prison and learned details of the facility where harsh interrogation
tactics were used. ARD’s programme on the CIA prison is set to air today.
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 building is used as the National Registry Office for Classified Information,
which is also known as ORNISS. Classified information from NATO and the
European Union is stored there. Former intelligence officials both described the
location of the prison and identified pictures of the building.
In an interview at the building in November [2011], senior ORNISS official Adrian
Camarasan said the basement is one of the most secure rooms in all of Romania. But
he said Americans never ran a prison there.
‘No, no. Impossible, impossible,’ he said in an ARD interview for its ‘Panorama
news broadcast, as a security official monitored the interview.
The CIA prison opened for business in the autumn of 2003, after the CIA decided to
empty the black site in Poland, according to former US officials.
Shuttling detainees into the facility without being seen was relatively easy. After
flying into Bucharest, the detainees were brought to the site in vans. CIA operatives
then drove down a side road and entered the compound through a rear gate that led to
the actual prison.
The detainees could then be unloaded and whisked into the ground floor of the
prison and into the basement.
The basement consisted of six prefabricated cells, each with a clock and arrow
pointing to Mecca, the officials said. The cells were on springs, keeping them slightly
off balance and causing disorientation among some detainees.
The CIA declined to comment on the prison. ...
Former US officials said that because the building was a government installation, it
provided excellent cover. The prison didn’t need heavy security because area residents
knew it was owned by the government. People wouldn’t be inclined to snoop in post-
communist Romania, with its extensive security apparatus known for spying on the
country’s own citizens.
Human rights activists have urged the Eastern European countries to investigate the
roles their governments played in hosting the prisons in which interrogation
techniques such as waterboarding were used. Officials from these countries continue
to deny these prisons ever existed.
‘We know of the criticism, but we have no knowledge of this subject’, Romanian
President Traian Băsescu said in a September [2011] interview with AP. ...
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. Romanian media
239. On 22 January 2002 Adevărul, a Romanian daily newspaper based
in Bucharest, published an article entitled “Treatment applied to hostages in
Afghanistan – ‘inhuman’ which read, in so far as relevant, as follows:
“British officials who made a visit to the prison at Guantánamo at the end of last
week presented a report to the British government on the manner in which Taliban
and Al-Qaida prisoners are treated. The authorities in London are going to study it in
detail given that criticism towards Americans has grown in recent days about the
treatment applied to prisoners at Guantánamo. Films depicting prisoners blindfolded
and chained by their hands and feet, with masks covering their mouth and nose and
kneeling before their guards, have led to public concern and condemnation in many
countries of the world. Great Britain, the main ally of the USA, was among the first
countries in which politicians referred to the images as ‘shocking’ and the manner in
which prisoners were treated as ‘monstrous’.
Following pressure from public opinion, the British Foreign Secretary, Jack Straw
has asked the Americans to treat hostages from Afghanistan ‘humanely’. The USA
stated that the images presented depicted prisoners at their time of arrival at
Guantánamo and are not representative of how they are treated in prison on a daily
basis. For now, the officials from London who visited the prison at Guantánamo
stated that the three Britons being held there have not formulated ‘any complaint’ in
relation to the manner in which they are treated.
Disputes between the Americans and British on this topic are the first visible sign of
dissent between the two allies since the start of the anti-terrorist campaign. According
to British officials, the 144 prisoners who have already arrived at Guantánamo are
housed in spaces that look like cages, separated by wire. London is of the view that
this kind of ‘degrading’ treatment” is ‘counterproductive’, and diminishes the chances
of the secret services of obtaining information on potential terrorists from the Muslim
community. ...”
240. On 5 February 2002 Adevărul published an article “The treatment
of prisoners at Guantánamo Bay attracts hundreds of new recruits to our
ranks”, which read, in so far as relevant, as follows:
“The treatment of Taliban and Al-Qaida detainees by American troops at the X-Ray
detention centre of the Guantánamo Bay American military base, Cuba ‘will lead to a
considerable increase in the number of recruits’ that will join Islamic terrorist groups,
stated Hassan Yousef on Sunday, the leader of Hamas, the extremist organization
found on the list of targets in the war on terrorism drawn up by the United States. ...
‘The Mirror’, after the international press published a photograph at the end of last
week of a detainee taken to interrogation strapped to a stretcher. ...Questioned even
from the beginning by European allies, the treatment applied to prisoners captured by
US forces in Afghanistan, creates new waves these days both in Europe and overseas.
After the former American Secretary of State, Madeline Albright criticized the
manner in which the Bush administration decided to treat Guantánamo Bay prisoners
(Washington does not consider that the status of prisoner of war applies to Al-Qaida
mercenaries). The latest spark to rekindle the controversy about the X-Ray detention
center, the picture shown here, caused a powerful storm in Great Britain. On Sunday,
Prime Minister Tony Blair made a fierce attack on the weekly newspaper ‘The Mail
on Sunday’ accusing it of undermining the war on terrorism after this newspaper
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91
published an article on its first page in which it suggested that American investigators
had interrogated detainees who were unconscious, or in other words, under the
influence of drugs. According to experts however, the fact that the photographed
detainee had his knees bent is proof that he was conscious at the time that he was
photographed. ...”
241. On 25 March 2002 Adevărul published an article entitled
“‘American Taliban’ mistreated by authorities” which read, in so far as
relevant, as follows:
“The ‘American Taliban’ John Walker Lindh has been mistreated by American
authorities during the time he has been in detention, stated his lawyers in a document
sent to the judge, reported newspaper ‘The Los Angeles Times’. ‘The American
Taliban’, John Walker Lindh, stated in a document submitted to the Court that he had
been mistreated by American Authorities during the time he has spent in detention.
John Walker Lindh, aged 21 years of age, was captured in the North of Afghanistan.
Lindh ‘was blindfolded, and his handcuffs were so tight that they stopped his blood
circulation’, his lawyers added, who claimed that American soldiers ‘threatened him
with death and torture’. He was given very little food and did not have the right to
receive medical care. The defense claimed that ‘The American Taliban’ had his
clothes cut up and remained ‘completely naked’ and was transported ‘in a metal
transport container’ where there was no source of heat or lighting.”
242. On 27 December 2002 Evenimentul Zilei, a Romanian newspaper
based in Bucharestm published an article entitled “Torture at the CIA?”
which read, in so far as relevant:
“Investigators from the Central Intelligence Agency of the United States (CIA) used
stressful
and violent interrogation techniques against enemies captured in
Afghanistan, that came somewhere between the ‘boundary of legal and inhuman’
writes The Washington Post newspaper. The prestigious American newspaper
describes metal containers which it says were secret CIA interrogation centers at the
Bagram airbase which was the Headquarters of the American forces involved in
operations to capture members of al-Qaeda and Taliban leaders.
Prisoners who refused to cooperate were kept kneeling for several hours with their
eyes covered with black cloth or by tinted glasses. On other occasions, prisoners were
forced to adopt strange or painful positions and being also deprived of rest – ‘were
subject to a process known by the technical name ‘stress and endurance’. ... The CIA
refrained from commenting on the article that appeared in The Washington Post.
According to the figures begrudgingly provided by the American authorities,
approximately 3000 members have al-Qaeda have been arrested until now, of which
625 are being held at Guantánamo Bay and approximately 100 more have been
‘transferred’ to other countries. A few thousand prisoners were arrested and
imprisoned with assistance from the United States in countries known and recognized
for their brutal treatment of prisoners. The Washington Post adds the fact that the
Bush administration applied this kind of policy which was contrary to publicly
expressed values, because it had doubts that the American public would support its
position.”
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243. On 20 May 2003 Evenimentul Zilei published an article entitled
“American torture using heavy metal” which read, in so far as relevant, as
follows:
“American troops in Iraq used a refined form of torture to break the resistance of
prisoners and make them talk, according to American magazine Newsweek. Stubborn
prisoners were ‘bombarded’ with heavy metal music played at maximum volume over
long periods of time until their nerves gave out. ... The idea is to break a person’s
resistance by upsetting him with music that an Iraqi considers to be offensive from a
cultural point of view, explained Sergeant Mark Hadsell. ‘These people never listened
to heavy metal in their life and they can’t stand it’, he added. ...
Iraqis tortured in war camps
These revelations come two days after Amnesty International representatives
returning from Iraq stated that many former prisoners, the majority of them civilians,
complained that they have been tortured during their detention in camps set up by
British and American troops. At least 20 prisoners stated that they were beaten hours
on end, and another, a Saudi citizen, said that he was subjected to electric shocks. The
Amnesty International Investigation is continuing, with a manager from the
organization claiming that we are certainly talking about cases of torture. At the time
that the report is completed, Amnesty International will ask American and British
authorities to reply to the accusations made by prisoners.”
C.
244. On 13 December 2014 Spiegel Online published an article entitled
“Black Site in Romania: Former spy chief admits existence of CIA camp”
which read as follows:
“There was at least one CIA prison in Romania – that is what the US torture report
says. Politicians of that country had always denied this. Now the former Romanian
spy chief speaks about a ‘transit centre’ of the US secret service.
Romanian politicians denied it for almost a decade – but now there is, for the first
time, a confession: there were CIA centres in Romania, in which captives were held
and possibly also tortured.
The former Romanian spy chief Ioan Talpeş told SPIEGEL ONLINE that there were
one or two locations in Romania, at which the CIA ‘probably held persons, who were
subjected to inhuman treatment’. This was the case in the period from 2003 to 2006.
Talpeş had previously confirmed the existence of ‘CIA transit camp’, as he calls them,
in the Bucharest daily ‘Adevărul’.
Talpeş is 70 years old now. From 1992 to 1997 he led the Romanian secret service
abroad, SIE, and from 2000 to 2004 he served as the Chief of the Presidential
Administration as well as the head of the National Security Department.
Talpeş told SPIEGEL ONLINE that he had, from 2003 onwards, continued
discussions with officials of the CIA and the US military about a more intense
cooperation. In the context of these discussions it was agreed that the CIA could carry
out its own activities in certain locations.
‘It was up to the Americans what they did in these places’
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He did not know where this was and Romania was, expressly, not interested in what
the CIA was doing there. The country wanted to prove its readiness to cooperate,
Talpeş said, because it sought NATO-membership. ‘It was up to the Americans what
they did in these places’, he said. First and foremost thanks to US advocacy, Romania
was admitted into NATO in 2004.
Dick Marty, the Council of Europe special investigator concerning the secret CIA
prisons, had accused Romania in 2005/2006 of hosting illegal CIA prisons for
terrorism suspects on its territory. Amnesty International had previously made similar
allegations. Among others, the key planner of 9/11, Khalid Sheikh Mohammed, is said
to have been held there.
Romanian politicians, including Presidents Ion Iliescu (in office from 2000 to 2004)
and Traian Băsescu (in office from 2004 to 2014) had always denied this. A
commission of inquiry of the Romanian parliament reported in 2006: there were no
CIA prisons in the country and no CIA captives were held there or transferred to other
countries on transit flights via Romania.
Since 2001, the US army has had an air base close to Kogălniceanu in the South
East of Romania. Apart from that base, the airports in Craiova in Southern Romania
and in Temeswar in Western Romania are reported to have been used for the transport
of CIA captives. Already in 2002 Romania signed an agreement with the USA,
according to which the country would not extradite US soldiers to the International
Criminal Court.
Even after the publication of the CIA torture report, in which a Romanian CIA
prison is mentioned as a ‘black site’, Romanian politicians denied its existence. Victor
Ponta, the head of the government, declined to comment on the CIA report.
The former Head-of-State Iliescu said on Wednesday that he had had no knowledge
of a CIA prison. However, Ioan Talpeş told SPIEGEL ONLINE that he had informed
President Iliescu in 2003 and 2004 that the CIA carried out ‘certain activities’ on
Romanian territory. At that time, Talpeş continued, he himself did not think that the
CIA could possibly torture captives. Therefore, ‘no major significance’ was attributed
to information about the activities of the US secret service in Romania.
In response to the question why he had not shared his knowledge when the Council
of Europe special investigator, Dick Marty, presented his report, Talpeş stated that he
had been unable to speak for as long as the competent US authorities had not
expressed themselves on the matter. In this respect he blamed Romanian politicians
for denying the existence of the transit camps.”
245. On 22 April 2015 Spiegel Online published an article entitled
“Torture in Romania: Former Head-of-State Iliescu admits existence of CIA
prison” which read:
“The CIA tortured in Romania – that is an open secret. Only the country’s officials
never wanted to acknowledge that. Now former Head-of-State Iliescu states in
SPIEGEL ONLINE: he left a location to the secret service.
It is hardly disputed any longer that the CIA entertained one or more secret prisons
in Romania following the attacks of 11 September 2001. The CIA report on torture of
last December speaks, in a somewhat cryptic way, of ‘Detention Site Black’. Several
of the most important CIA captives, among them the key planner of 9/11, Khalid
Sheikh Mohammed, are said to have been held and tortured in Romania between 2002
and 2006.
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Despite numerous indications, Romanian officials for years vehemently denied that
there had been secret CIA prisons on the country’s territory. Now, the late confession
concerning the Romanian ‘Detention Site’ comes from nobody less than the former
Head-of-State Ion Iliescu, who was in office from 2000 to 2004.
In an interview with SPIEGEL ONLINE, Iliescu stated that around the turn of the
year 2002/2003, ‘our US allies asked us for a site’. He, as Head-of-State, did, in
principle, grant this request. The details were taken care of by Ioan Talpeş , who, at
the time, was the head of the National Security Department and the chief of the
Presidential Administration.
By virtue of this statement, the 85 year-old Iliescu becomes the second Head-of-
State - following the former Polish Head-of-State Aleksander Kwaśniewski – to admit
the former existence of a CIA prison on behalf of his country.
Iliescu explicitly wants to speak of a location/site (‘Standort’) – he claims not to
have known of a prison. ‘It was about a gesture of courtesy ahead of our accession to
NATO’, Iliescu told SPIEGEL ONLINE.
‘We did not interfere with the activities of the USA on this site. This request seemed
like a minor issue to me as the Head-of-State. We were allies, we went to war together
in Afghanistan and in the Middle East. Therefore, I did not go into detail when our
allies requested a specific site in Romania’.
Had he known more at that time, Iliescu continued, the request would ‘of course
not’ have been responded to positively. ‘We learned from this experience to be more
attentive in relation to such requests in the future and to ponder more scrupulously’.
Iliescu gave the CIA ‘plenty of rope’
Talpeş, the former chief of Iliescu’s Presidential Administration, had previously led
the Romanian secret service abroad, SIE. Vis-à-vis SPIEGEL ONLINE he admitted
already last year, as the first Romanian official, the existence of ‘CIA transit centres’.
Talpeş also confirmed Iliescu’s statements now.
He had received a request from a representative of the CIA in Romania at the turn of
the year 2002/2003 for premises, which the US secret service needed for its own
activities. Iliescu gave him ‘plenty of rope’ to take care of this request. He arranged
for a building in Bucharest to be given to the CIA. This building was used by the CIA
from 2003 to 2006. It did no longer exist. He would not reveal where exactly this
building was located.
Talpeş thereby corrected his earlier statement that he did not know the location of
the CIA transit centres. He now states that the only thing he did not know, was
whether the CIA also used the US air base in Kogălniceanu in South East Romania.
Also, he never visited any of the ‘CIA sites’ personally. With regard to the premises
in Bucharest, he was aware that ‘the matter [could] become dangerous’. Therefore, he
explicitly told the CIA representatives that Romania did not want to know anything
about the activities on these premises. At the time, he wanted to prove Romania’s
loyalty to the alliance in the period of the NATO accession through this measure.
The statements by Iliescu and Talpeş confirm the 2006/2007 reports by former
special investigator of the Council of Europe concerning the secret CIA prisons, Dick
Marty. Marty had, already at that time, accused Romania of hosting secret CIA
prisons on its territory. Romanian officials and politicians, among them Iliescu, had
disputed the allegations. According to Marty’s 2007 report, at least five high-ranking
Romanian officials were informed about the existence of the secret CIA prisons.
Besides Iliescu and Talpeş this included the former Head of State Traian Băsescu,
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95
who was in office from 2004 to 2014. Băsescu did not want to comment on the matter
following a query from SPIEGEL ONLINE.
‘We did not have any clues back then’
In 2008 a commission of inquiry of the Romanian parliament had concluded that
there had not been any secret CIA prisons in Romania and that there was no
information on CIA-flights or transports of captives. The former head of this
commission, the politician of the Liberals and current Member of the European
Parliament, Norica Nicolai, adheres to this statement to the present day. ‘We did not
have any clues back then’, Nicolai told SPIEGEL ONLINE.
However, the chairperson of the Romanian human rights organisation APADOR-
CH, Maria Nicoleta Andreescu, describes the work of the commission as ‘totally
inefficient and frivolous’. APADOR-CH, inter alia, represents the former CIA captive
Abd al-Rahim al-Nashiri in Romania. He is said to have planned the attack on the
destroyer U.S.S. ‘Cole’ in Yemen in October 2000. He was supposedly kept and
tortured in Romania between 2003 and 2006. In 2012 Al-Nashiri took legal action
against the State of Romania, which is still pending.
The APADOR-CH chairperson Andreescu describes Iliescu’s present confession on
CIA prisons in Romania as a ‘very important and significant statement’. ‘If the
Romanian State is willing to clarify the question of CIA prisons, then the public
prosecutor must open criminal investigations following this statement’, Andreescu
said.”
IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET
DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN
EUROPE, INCLUDING ROMANIA
A. Council of Europe
1. Procedure under Article 52 of the Convention
246. 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 Romania.
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
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of detainees; whether any official investigation was under way or had been
completed.
247. The Romanian Government replied on an unspecified date denying
that any unacknowledged deprivation of liberty or illegal transport of
prisoners had taken place on Romanian territory.
248. On 1 March 2006 the Secretary General released his report on the
use of his powers under Article 52 of the Convention (SG/Inf (2006) 5) of
28 February 2006 based on the official replies from the member states.
2. Parliamentary Assembly’s inquiry - the Marty Inquiry
249. 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
250. 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 249 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, including Romania.
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”.
251. Chapter 1.3 of the 2006 Marty Report, entitled “Secret CIA prisons
in Europe?” read, in so far as relevant, as follows:
“7. This was the news item circulated in early November 2005 by the American
NGO Human Rights Watch (HRW), The Washington Post and the ABC television
channel. Whereas The Washington Post did not name specific countries hosting, or
allegedly having hosted, such detention centres, simply referring generically to
‘eastern European democracies’, HRW reported that the countries in question are
Poland and Romania. On 5 December 2005, ABC News in turn reported the existence
of secret detention centres in Poland and Romania, which had apparently been closed
following The Washington Post’s revelations. According to ABC, 11 suspects
detained in these centres had been subjected to the harshest interrogation techniques
(so-called enhanced interrogation techniques’) before being transferred to CIA
facilities in North Africa.
8. It is interesting to recall that this ABC report, confirming the use of secret
detention camps in Poland and Romania by the CIA, was available on the Internet for
only a very short time before being withdrawn following the intervention of lawyers
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97
on behalf of the network’s owners. The Washington Post subsequently admitted that it
had been in possession of the names of the countries, but had refrained from naming
them further to an agreement entered into with the authorities. It is thus established
that considerable pressure was brought to bear to ensure that these countries were not
named. It is unclear what arguments prevailed on the media outlets in question to
convince them to comply. ...”
252. 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,
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.”
253. Chapter 2.6.1 referred to Romania. It stated, in so far as relevant, as
follows:
“56. Romania is thus far the only Council of Europe member State to be located on
one of the rendition circuits we believe we have identified and which bears all the
characteristics of a detainee transfer or drop-off point. The N313P rendition plane
landed in Timișoara at 11.51 pm on 25 January 2004 and departed just 72 minutes
later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic
Authority for confirming these flight movements.
...
58. We can likewise affirm that the plane was not carrying prisoners to further
detention when it left Timișoara. Its next destination, after all, was Palma de Mallorca,
a well-established “staging point”, also used for recuperation purposes in the midst of
rendition circuits.
59. There is documentation in this instance that the passengers of the N313P plane,
using US Government passports and apparently false identities, stayed in a hotel in
Palma de Mallorca for two nights before returning to the United States. One can
deduce that these passengers, in addition to the crew of the plane, comprised a CIA
rendition team, the same team performing all renditions on this circuit.
60. The N313P plane stayed on the runway at Timișoara on the night of
25 January 2004 for barely one hour. Based on analysis of the flight capacity of
N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is
highly unlikely that the purpose of heading to Romania was to refuel. The plane had
the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul
that night – twice previously on the same circuit, it had already flown longer distances
of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers).
61. It should be recalled that the rendition team stayed about 30 hours in Kabul
after having ‘rendered’ Khaled El-Masri. Then, it flew to Romania on the same plane.
Having eliminated other explanations – including that of a simple logistics flight, as
the trip is a part of a well-established renditions circuit – the most likely hypothesis is
that the purpose of this flight was to transport one or several detainees from Kabul to
Romania.
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62. We consider that while all these factual elements do not provide definitive
evidence of secret detention centres, they do justify on their own a positive obligation
to carry out a serious investigation, which the Romanian authorities do not seem to
have done to date.”
254. 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.”
255. In Chapter 8.2 concerning parliamentary investigations undertaken
in certain member states, the report referred to Romania under the title
“Romania and “the former Yugoslav Republic of Macedonia” stating “no
parliamentary inquiry”:
“253. To my knowledge, no parliamentary inquiry whatsoever has taken place in
either country, despite the particularly serious and concrete nature of the allegations
made against both. ...”
256. 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.
...
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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.
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
257. 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 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.
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258. The introductory remarks referring to the establishment of facts and
evidence gathered, read, in so far as relevant:
“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
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101
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
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. ...”
259. 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).
....”
260. 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
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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.
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.”
261. Paragraphs 128-133 explained the US’s choice of European
partners. This part of the report read, in so far as relevant, as follows:
“128. For reasons of both security and capacity, the CIA determined that the Polish
strand of the HVD programme should remain limited in size. Thus a ‘second
European site’ was sought to which the CIA could transfer its detainees with ‘no
major logistical overhaul’. Romania, used extensively by United States forces during
Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a
member of the CIA’s Counterterrorist Centre remarked about the location of the
proposed detention facility, ‘our guys were familiar with the area’.
...
130. Romania was developed into a site to which more detainees were transferred
only as the HVD programme expanded. I understand that the Romanian ‘black site’
was incorporated into the programme in 2003, attained its greatest significance
in 2004 and operated until the second half of 2005. The detainees who were held in
Romania belonged to a category of HVDs whose intelligence value had been assessed
as lower but in respect of whom the Agency still considered it worthwhile pursuing
further investigations.”
262. Paragraphs 211-218 contained conclusions as to who were the
Romanian State officials responsible for authorising Romania’s role in the
CIA’s HVD programme. These conclusions read, in so far as relevant, as
follows:
“211. During several months of investigations, our team has held discussions with
numerous Romanian sources, including civilian and military intelligence operatives,
representatives of state and municipal authorities, and high-ranking officials who hold
first-hand knowledge of CIA operations on the territory of Romania. Based upon
these discussions, my inquiry has concluded that the following individual office-
holders knew about, authorised and stand accountable for Romania’s role in the CIA’s
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operation of ‘out-of-theatre’ secret detention facilities on Romanian territory, from
2003 to 2005: the former President of Romania (up to 20 December 2004), Ion
ILIESCU, the current President of Romania (20 December 2004 onwards), Traian
BASESCU, the Presidential Advisor on National Security (until 20 December 2004),
Ioan TALPEŞ , the Minister of National Defence (Ministerial oversight up to
20 December 2004), Ioan Mircea PASCU, and the Head of Directorate for Military
Intelligence, Sergiu Tudor MEDAR.
212. Collaborating with the CIA in this very small circle of trust, Romania’s
leadership in the fields of national security and military intelligence effectively short-
circuited the classic mechanisms of democratic accountability. Both of the political
principals, President Iliescu and National Security Advisor Talpeş , sat on (and most
often chaired) the CSAT - the Supreme Council of National Defence – throughout this
period, yet they withheld the CIA ‘partnership’ from the other members of that body
who did not have a ‘need to know’. This criterion excluded the majority of civilian
office-holders in the Romanian Government from complicity at the time. Similarly,
the Directors of the respective civilian intelligence agencies, the SRI and the SIE,
were not briefed about the operational details and were thus granted ‘plausible
deniability’.
213. We were told that the confidants on the military side, Defence Minister Pascu
and General-Lieutenant Medar, had concealed important operational activities from
senior figures in the Army and powerful structures to which they were subordinated.
According to our sources, ‘co-operation with America in the context of the NATO
framework’ was used as a general smokescreen behind which to hide the operations of
the CIA programme.
...
216. Ioan Talpeş , the then Presidential Advisor on National Security (Consilierul
prezidențial pentru securitate națională), was also an instrumental figure in the CIA
programme from its inception. According to our sources, Talpeş guided President
Iliescu’s every decision on issues of NATO harmonisation and bilateral relations with
the United States; it has even been suggested that Talpeş was the one who initiated the
idea of making facilities on Romanian soil available to US agencies for activities in
pursuit of its ‘war on terror’. After December 2004, although Talpeş no longer acted
as the Presidential Advisor on National Security, he quickly become Chair of the
Senate Committee on Defence, Public Order and National Security, which meant that
he exercised at least a theoretical degree of ‘parliamentary oversight’ over his own
successor in the Advisor role.
217. Several of our Romanian sources commented that they felt proud to have been
able to assist the United States in detaining ‘high-value’ terrorists – not only as a
gesture of pro-American sentiment, but also because they thought it was ‘in the best
interests of Romania’.”
263. In paragraphs 219-226 the 2007 Marty Report described “The
anatomy of CIA secret transfers and detention in Romania”. Those
paragraphs read, in so far as relevant, as follows:
“a. Creating a secure area for CIA transfers and detentions
219. When the United States Government made its approach for the establishment
of a ‘black site’ in Romania – offering formidable US support for Romania’s full
accession into the NATO Alliance as the ‘biggest prize’ in exchange – it relied
heavily upon its key liaisons in the country to make the case to then President Iliescu.
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As one high-level Romanian official who was actually involved in the negotiations
told us, it was ‘proposed to the President that we should provide full protection for the
United States from an intelligence angle. Nobody from the Romanian side should
interfere in these [CIA] activities’.
220. In line with its staunch support under the NATO framework, Romania entered
a bilateral ‘technical agreement’ with the intention of giving the US the full extent of
the permissions and protections it sought. According to one of our sources with
knowledge of the arrangement, there was an ‘... order [given] to our [military]
intelligence services, on behalf of the President, to provide the CIA with all the
facilities they required and to protect their operations in whichever way they
requested ...’.
...
222. The precise location and character of the ‘black site’ were not, to the best of
my knowledge, stipulated in the original classified bilateral arrangements between
Romania and the United States. Our team discussed those questions with multiple
sources and we believe that to name a location explicitly would go beyond what it is
possible to confirm from the Romanian side. One senior source in military
intelligence objected to the notion that anyone but the Americans would ‘need to
know’ this information: ‘But I tell you that our Romanian officers do not know what
happened inside those areas, because we sealed it off and we had control. There were
Americans operating there free from interference – only they saw, only they heard –
about the prisoners. ...’”
264. Paragraphs 227-230 referred to the persistent cover-up with regard
to the transfer of detainees into Romania:
“227. Our efforts to obtain accurate actual flight records pertaining to the
movements of aircraft associated with the CIA in Romania were characterised by
obfuscation, inconsistency and genuine confusion. ...
228. Specifically I hold three principal concerns with the approach of the Romanian
authorities towards the repeated allegations of secret detentions in Romania, and
towards my inquiry in particular. In summary, my concerns are: far-reaching and
unexplained inconsistencies in Romanian flight and airport data; the responsive and
defensive posturing of the national parliamentary inquiry, which stopped short of
genuine inquisitiveness; and the insistence of Romania on a position of sweeping,
categorical denial of all the allegations, in the process overlooking extensive evidence
to the contrary from valuable and credible sources.
inconsistencies in the flight data
229. First I was confounded by the clear
provided to my inquiry from multiple different Romanian sources. In my analysis I
have considered data submitted directly from the Romanian Civil Aeronautical
Authority (RCAA), data provided by the Romanian Senate Committee, and data
gathered independently by our team in the course of its investigations. I have
compared the data from these Romanian sources with the records maintained by
Eurocontrol, comprehensive aeronautical ‘data strings’ generated by the international
flight planning system, and my complete Marty Database. The disagreement between
these sources is too fundamental and widespread to be explained away by simple
administrative glitches, or even by in-flight changes of destination by Pilots-in-
Command, which were communicated to one authority but not to another. There
no truthful account of detainee transfer flights into Romania
presently exists , and
the reason for this situation is that the Romanian authorities probably do not want the
truth to come out.
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230. I found it especially disappointing that the Senate Inquiry Committee chose to
interpret its mandate in the rather restrictive terms of defending Romania against what
it called ‘serious accusations against our country, based solely on “indications”,
“opinions”, “probabilities”, “extrapolations” [and] “logical deductions”‘. In particular,
the Committee’s conclusions are not framed as coherent findings based on objective
fact-finding, but rather as ‘clear responses to the specific questions raised by Mr Dick
Marty’, referring to both my 2006 report and subsequent correspondence. Accordingly
the categorical nature of the Committee’s ‘General Conclusions’, ‘Conclusions based
on field investigations and site visits’ and ‘Final Conclusions’ cannot be sustained.
The Committee’s work can thus be seen as an exercise in denial and rebuttal, without
impartial consideration of the evidence. Particularly in the light of the material and
testimony I have received from sources in Romania, the Committee does not appear to
have engaged in a credible and comprehensive inquiry.”
265. By a letter of 15 June 2007 the Delegation of Romania to the PACE
submitted a dissenting opinion to the 2007 Marty Report stating, among
other things, that “in full transparency, in 2005, the Romanian authorities
have also decided to allow and encourage investigations at all the locations
suspected to have hosted CIA centres, on the territory of Romania.
Therefore, the airports Mihail Kogălniceanu of Constanţa (including the
military airbase) were inspected by representatives of international NGOs,
as well as by Romanian and foreign journalists”.
(c) The 2011 Marty Report
266. 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.
Paragraph 41 related to Romania. Its relevant part read:
“41. In Romania, parliament has also conducted no more than a superficial inquiry,
of which a critical presentation was already given in my 2007 report. Unfortunately,
there has been nothing to add since then.”
267. On 6 October 2011, following the 2011 Marty Report, the PACE
adopted its Resolution 1838 (2011) which, in part relating to Romania, read:
“11. With regard to judicial inquiries, the Assembly:
...
11.4. calls on the judicial authorities of Romania and of ‘the former Yugoslav
Republic of Macedonia’ to finally initiate serious investigations following the detailed
allegations of abductions and secret detentions in respect of those two countries, and
on the American authorities to provide without further delay the judicial assistance
requested by the prosecuting authorities of the European countries concerned.
...
12. With regard to parliamentary inquiries, the Assembly:
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...
12.4. deplores the fact that the Polish and Romanian Parliaments confined
themselves to inquiries whose main purpose seems to have been to defend the official
position of the national authorities ...”
B. European Parliament
1. The Fava Inquiry
268. 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.
It identified at least 1,245 flights operated by the CIA in European
airspace between the end of 2001 and 2005.
269. 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.
270. The TDIP delegation visited Bucharest from 17 to 19 October 2006
and held meetings with a number of Romanian’s high-office holders,
including Ms N. Nicolai, the chairman of the Romanian Senate’s Special
Committee of Inquiry, Mr T. Meleșcanu, Vice-President of the Senate and
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member of the Special Committee of Inquiry, Mr A.C. Vierița, Secretary of
State for EU Affairs at the Ministry of Foreign Affairs, Mr G. Maior,
current Head of the Romanian Intelligence Service, Mr R. Timofte, former
Head of the Romanian Intelligence Service, representatives of the
Ministerial Department of Civil Aviation as well as representatives of
various non-governmental organisations, including the Open Society
Foundation and APADOR-CH and journalists.
271. As regards Romania, the Fava Report expressed, in paragraph 162,
“serious concern” about the 21 stopovers made by the CIA-operated aircraft
at Romanian airports, which on most occasions had come or were bound for
“countries linked with extraordinary rendition circuits and the transfer of
detainees”.
It further concluded, in paragraph 164, that based only on the statements
made by Romanian authorities to the TDIP delegation to Romania, the
possibility that the US secret services operated in Romania on a clandestine
basis could not be excluded and that no definitive evidence had been
provided to contradict any of the allegations concerning the running of a
secret detention facility on Romanian soil.
272. Detailed information gathered during the Fava Inquiry was also
included in working documents produced together with the Fava Report.
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 the TDIP (PE 380.984v02-00)
contained an analysis of CIA flights having stopped over in Romania in
2003-2005. It named five airports involved and listed the stopovers and
landings as filed in flight plans:
(a) Bucharest – Otopeni and Băneasa airports, 13 stopovers and
5 take-offs;
(b) Timișoara: 1 landing;
(c) Constanţa – Kogălniceanu airport: 2 stopovers and 4 landings;
(d) Bacău: 1 stopover.
The stopovers involved 14 different CIA aircraft, which were identified
as follows: N313P; N85VM; N379; N2189M; N8213G; N157A; N173S;
N187D; N312ME; N4009L; N4456A; N478GS and N4466A.
It was noted, however, that according to Eurocontrol data flight logs
concerning Romania had been filed with some inconsistencies; flight plans
indicated a landing airport which did not correspond with the following
taking off airport. The flight plans that were found to have been inconsistent
concerned the following flights:
plane N313P
flight on 25-26 January 2004, from Kabul with the destination filed for
Timișoara but the following take off from Bucharest to Palma de Mallorca
plane N85VM
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(1) flight on 26-27 January 2004 from Amman with the destination filed
for Constanţa but the following take off from Bucharest to Barcelona;
(2) flight on 12 April 2004 from Tenerife with the destination filed for
Constanţa but the following take off from Bucharest to Casablanca;
plane N379
flight on 25 October 2003 from Prague with the destination filed for
Constanţa but the following take off from Bucharest to Amman;
plane N1HC
flight on 5 November 2005 from Porto with the destination filed for
Constanţa but the following take off from Bucharest to Amman.
273. Working document no. 8 further listed the total number of
stopovers for each aircraft and identified three aircraft that were known to
have been involved in the CIA rendition operations: N313P (two stopovers),
used for the extraordinary rendition of Khaled El Masri (Skopje via
Baghdad-Kabul on 24 January 2004) and Benyam Mohammad
(Rabat-Kabul 22 January 2004); N85VM (three stopovers), used for the
extraordinary rendition of Osama Mustafa Nasr aka Abu Omar
(Ramstein-Cairo 17 February 2003; see also Nasr and Ghali, cited above,
§§ 39, 112 and 231) and N379P (one stopover), used for the extraordinary
renditions of Ahmed Agiza and Mohammed al-Zari (Stockholm-Cairo
18 December 2001), Abu Al Kassem Britel (Islamabad-Rabat 25 May
2002), Benyamin Mohammed (Islamabad-Rabat 21 July 2002), Bisher Al
Rawi and Jamil El Manna (Banjul-Kabul 9 December 2002).
It also listed flights from suspicious locations that stopped over in
Romania in 2003-2005, with the first flight N313P on 22 September 2003
and the last flight N1HC on 5 November 2005. That list, in so far as
relevant, read as follows:
Afghanistan, Kabul + Bagram US Air Base: 5 flights
“
N313P: Kabul– via Szymany, Poland – Bucharest, 22.09.2003
N313P: Kabul– Timișoara, 25.01.2004
N739P: Bucharest – via Amman, Jordan – Kabul, 25.10.2003
N478GS: Bucharest – Bagram US Air Base, 05.12.2004
N478GS: Bagram US Air Base - Bucharest, 06.12.2004
Jordan, Amman: 8 flights
N58VM: Amman – Constanţa , 26.01.2004
N58VM: Amman – Constanţa , 01.10.2004
N739P: Bucharest - Amman, 25.10.2003
N2189M: Amman – Constanţa , 13.06.2003
N2189M: Constanţa - Amman, 14.06.2003
N1HC: Bucharest – Amman, 05.11.2005
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N187D: Bucharest – Amman, 27.08.2004
N4456A: Bucharest – via Athens, Greece – Amman, 25.08.2004
Morocco, Rabat + Casablanca: 2 flights
N313P: Bucharest – Rabat, 22.09.2003
N58VM: Bucharest – Casablanca, 12.04.2004
Cuba, Guantánamo:
N313P: Bucharest – via Rabat, Morocco – Guantánamo , 23.09.2003
N85VM: Guantánamo – via Tenerife, Spain – Constanţa , 12.04.2004.”
274. Working document no. 9 on certain countries analysed during the
work of the Temporary Committee (PE 382.420v02-00) in a section
concerning Romania and allegations of the existence of a CIA detention
facility on its territory, stated the following:
“A) ALLEGED EXISTENCE OF DETENTION CENTRES
Suspected airports supposed to host secret detention centres have been mentioned in
mass-media, in some NGOs’ reports, in Council of Europe’s report and have also
been inferred from Eurocontrol data, as well as from pictures taken via satellite. These
airports are:
Timișoara - Gearmata
București - Băneasa
Constanţa - Kogălniceanu
Cataloi - Tulcea
Fetești - military”
As regards the parliamentary inquiry conducted in Romania (see also
paragraphs 165-169 above), the document read, in so far as relevant, as
follows:
“B) NATIONAL OFFICIAL INQUIRIES
Parliament
A Temporary Inquiry Committee in the Romanian Senate on the Allegations
Regarding the Existence of CIA Detention Centres or Flights over Romania’s
st
Territory was set up on 21 December 2005.
On 16 June 2006, Ms Norica Nicolai, president of the Special Inquiry Committee
presented during a press conference the conclusions of the preliminary report. At that
stage, only the chapter 7 of the report was made public and the rest of the report
remained classified.
...
The Committee’s term of office has been extended by a Senate’s decision on
21 June 2006 following a number of incidents, such as the investigation of the
accident involving the Gulfstream aircraft N478GS on 6 December 2004 and the
televised statements made by a young Afghan claiming to have been detained in
Romania. The Committee’s activity is ongoing and during the Senate sittings of
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22 November 2006 a new deadline for submitting the final report has been settled:
05 March 2007.”
275. Referring to the alleged involvement of the Romanian authorities in
the CIA secret detentions, the document stated:
“C) ROLE OR ATTITUDE OF ROMANIAN BODIES
Since the publication of the first news about alleged existence of the CIA prisons
and illegal transportation of prisoners, Romanian official position has moved from a
first categorical denial that CIA secret prisons could be hosted in Romania and that
CIA flights could have landed in this country to a less firm and more doubtful attitude,
which confirms that something clandestine, not supposed to be known by Romanian
authorities, could have happened either on the planes or in the areas controlled by the
American authorities.
Cooperation of official authorities with the Temporary Committee’s delegation was
very high.
They claimed that nobody could have thought that human rights violations could
have been taking place on Romanian territory and they confirmed that individuals,
goods and other equipment circulating on Romanian territory were subject to checks
by Romanian officials or military personnel.
On 10th November 2005, President Băsescu denied during his visit in Bratislava, the
existence of CIA detention centres on Romanian territory. One week after, he declared
to be at the disposal of any institution that would like to verify the existence of CIA
secret detention sites in Romania. In the same line with the declaration of Mr Băsescu
were also the declarations of former minister for external affairs, Mr. Mircea Geoană
and of the spokesperson of Romanian Secret Service (SRI), Mr. Marius Beraru.
On 20th November 2005, former Romanian minister for defence, Mr Ioan Mircea
Pascu, stated in an interview for Associated Press that the Romanian authorities did
not have access to certain sites used by U.S. services in Romania. He came back to
this declaration, later on, saying that his comments were taken out of the context.
Regarding the accident involving the Gulfstream aircraft N478GS on 6 December
2004 the position of the Romanian authorities differed in some extent: Ms Norica
Nicolai, chairperson of the Romanian Senate’s Special Committee of Inquiry
pretended not being able to make available to the delegation the report drawn up by
the frontier police on the mentioned accident by invocating the law on data protection.
On the other hand, Mr. Anghel Andreescu, Secretary of State for Public Order and
Security at the Ministry of Interior and Public Administration, willingly agreed after
meeting the TDIP delegation to forward this report and only the following day after
receiving it Mr Coelho, chairman of the delegation, was informed that this document
has to remain confidential.”
276. The document also identified certain flights landing in Romania,
which were associated with the CIA rendition operations:
“D) FLIGHTS
Total Flights Number since 2001: 21
Principal airports
: Kogălniceanu, Timișoara, Otopeni, Băneasa
Suspicious destinations and origins
: Guantánamo, Cuba; Amman, Jordan; Kabul,
Bagram US airbase, Afghanistan; Rabat, Morocco; Baghdad, Iraq.
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Stopovers of planes transited through Romania and used in other occasions for
extraordinary renditions
:
N379P
, used for the extraordinary renditions of: Al Rawi and El Banna; Benyam
Mohammed; Kassim Britel and the expulsion of Agiza and El Zari: 1 stopover in
Romania
N313P
, used for the extraordinary renditions of Khalid El Masri and Benyamin
Mohamed: 2 stopovers in Romania
N85VM
, used for the rendition of Abu Omar: 3 stopovers in Romania.”
277. 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
278. 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”). Its general part
read, in so far as relevant, as follows:
“The European Parliament,
...
J.
whereas on 6 September 2006, US President George W. Bush confirmed
that the Central Intelligence Agency (CIA) was operating a secret detention
programme outside the United States,
K.
whereas President George W. Bush said that the vital information derived
from the extraordinary rendition and secret detention programme had been shared
with other countries and that the programme would continue, which raises the strong
possibility that some European countries may have received, knowingly or
unknowingly, information obtained under torture,
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,”
279. 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;
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...
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;
...”
280. In respect of Romania, the resolution stated:
“ROMANIA
[The European Parliament]
159. Welcomes the excellent hospitality and good cooperation extended by the
Romanian authorities to the Temporary Committee, including meetings with members
of the Romanian Government, as well as the establishment of an ad hoc inquiry
committee of the Romanian Senate;
160. Notes, however, the reluctance on the part of the competent Romanian
authorities to investigate thoroughly the existence of secret detention facilities on its
territory;
161. Regrets that the report issued by the Romanian inquiry committee was entirely
secret except for its conclusions, included in Chapter 7, categorically denying the
possibility that secret detention facilities could be hosted on Romanian soil; regrets
that the Romanian inquiry committee heard no testimony from journalists, NGOs, or
officials working at airports, and has not yet provided the Temporary Committee with
the report contrary to its commitment to do so; regrets that taking these elements into
consideration, the conclusions drawn in the Romanian inquiry committee’s report
appear premature and superficial; takes note, however, of the intention expressed by
the Chairwoman of the inquiry committee to the Temporary Committee delegation to
consider the conclusions provisional;
162. Regrets the lack of control of the Gulfstream aircraft with Registration
Number N478GS that suffered an accident on 6 December 2004 when landing in
Bucharest; recalls that the aircraft took off from Bagram Air Base in Afghanistan, and
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113
that its seven passengers disappeared following the accident; appreciates, however,
the good cooperation of the Romanian authorities in handing over the accident report
to the Temporary Committee;
163. Is deeply concerned to see that the Romanian authorities did not initiate an
official investigation process into the case of a passenger on the aircraft Gulfstream
N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with
ammunition;
164. Notes the 21 stopovers made by CIA-operated aircraft at Romanian airports,
and expresses serious concern about the purpose of those flights which came from or
were bound for countries linked with extraordinary rendition circuits and the transfer
of detainees; deplores the stopovers in Romania of aircraft that have been shown to
have been used by the CIA, on other occasions, for the extraordinary rendition of
Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri, Binyam
Mohammed and Abu Omar and for the expulsion of Ahmed Agiza and Mohammed El
Zari; is particularly concerned that, of the flights referred to, two originated from or
were destined for Guantánamo; strongly encourages the Romanian authorities further
to investigate those flights;
165. Is concerned about the doubts expressed in regard to the control exercised by
the Romanian authorities over US activities at Kogălniceanu airport;
166. Cannot exclude, based only on the statements made by Romanian authorities
to the Temporary Committee delegation to Romania, the possibility that US secret
services operated in Romania on a clandestine basis and that no definitive evidence
has been provided to contradict any of the allegations concerning the running of a
secret detention facility on Romanian soil;”
3. The 2011 European Parliament Resolution
281. On 9 June 2011 the European Parliament adopted its resolution on
Guantánamo: imminent death penalty decision (doc. B70375/2011) relating
to Mr Al Nashiri.
The European Parliament, while recognising that the applicant was
accused of serious crimes, expressed its deep concern that the US authorities
in his case had violated international law “for the last 9 years”. It called on
the US Convening Authority not to apply the death penalty on him, “on the
grounds that the military commission trials do not meet the standards
internationally required for the application of the death sentence”.
The European Parliament further appealed to “the particular
responsibility of the Polish and Romanian Governments to make thoroughly
inquiries into all indications relating to secret prisons and cases of
extraordinary rendition on Polish soil and to insist with the US Government
that the death penalty should on no account be applied to Mr Al Nashiri”.
4. The Flautre Report and the 2012 European Parliament Resolution
282. On 11 September 2012 the European Union Parliament adopted a
report prepared by Hélène Flautre within the Committee on Civil Liberties,
Justice and Home Affairs (“LIBE”) – “the Flautre Report”, highlighting
new evidence of secret detention centres and extraordinary renditions by the
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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.
In the course of its work, on 27 March 2012, LIBE 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.
283. Following the examination of the Report the European Union
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”).
284. Paragraph 13 of the 2012 EP Resolution, which refers to the
criminal investigation in Romania, read:
“[The European Parliament,]
“12. Notes that the parliamentary inquiry carried out in Romania concluded that no
evidence could be found to demonstrate the existence of a secret CIA detention site on
Romanian territory; calls on the judicial authorities to open an independent inquiry
into alleged CIA secret detention sites in Romania, in particular in the light of the new
evidence on flight connections between Romania and Lithuania;”
285. Paragraph 45, which concerns the applicant, read:
““[The European Parliament,]
45. Is particularly concerned by the procedure conducted by a US military
commission in respect of Abd al-Rahim al-Nashiri, who could be sentenced to death if
convicted; calls on the US authorities to rule out the possibility of imposing the death
penalty on Mr al-Nashiri and reiterates its long-standing opposition to the death
penalty in all cases and under all circumstances; notes that Mr al-Nashiri’s case has
been before the European Court of Human Rights since 6 May 2011; calls on the
authorities of any country in which Mr al-Nashiri was held to use all available means
to ensure that he is not subjected to the death penalty; urges the VP/HR to raise the
case of Mr al-Nashiri with the US as a matter of priority, in application of the
EU Guidelines on the Death Penalty;”
5. The 2013 European Parliament Resolution
286. 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],
...
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G. whereas the in-depth investigative work broadcast on the Antena 1 television
channel in April 2013 provided further indications of Romania’s central role in the
prison network; whereas former national security advisor Ioan Talpeş stated that
Romania provided logistical support for the CIA; whereas a former Romanian senator
admitted the limitations of the previous parliamentary inquiry and called for
prosecutors to initiate judicial proceedings;”
Paragraph 5, which concerned Romania, read:
“[The European Parliament,]
5. Urges the Romanian authorities to swiftly open an independent, impartial,
thorough and effective investigation, to locate missing parliamentary inquiry
documents
and to cooperate fully with the ECtHR in the case of Al
Nashiri v Romania; calls on Romania to comply fully with its fundamental rights
obligations.”
6. The 2015 European Parliament Resolution
287. Following the publication of the 2014 US Senate Committee
Report (see paragraphs 77-96), 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”.
7. LIBE delegation’s visit to Romania (24-25 September 2015)
288. As a follow up to the 2015 EP Resolution, a delegation from the
LIBE visited Bucharest from 24 to 25 September 2015. The delegation was
headed by Ms Tanja Fajon and comprised three other members
(Ms Eva Joly, Ms Laura Ferrara and Mr Jeroen Lenaers and an
accompanying member – Ms Ramona Mănescu). The delegation met with
representatives of the Ministry of Foreign Affairs, the Prosecutor General,
several members of the Romanian Parliament as well as representatives of
civil society and investigative journalists.
In connection with the visit, Mr Crofton Black prepared a briefing of
15 September 2015 on “CIA Detention in Romania and the Senate
Intelligence Committee Report (“the 2015 LIBE Briefing”). The briefing
described correlations between the 2014 US Senate Committee Report and
other public data sources. It included a summary of flights through Romania
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and their links to the rendition programme, as well as of summary of data in
the 2014 US Senate Committee Report relating to Romania (see also
paragraphs 355-358 below).
8. Follow-up to the visit
289. On 13 October 2015 the LIBE held a hearing 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 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 US Senate’s report the evidence
had been conclusive that the CIA had operated a prison in Romania from
September 2003 to November 2005.
At a 13 October 2015 European Parliament hearing, Eva Joly, member of
a European Parliament delegation that visited Romania to investigate its role
in CIA secret detention operation observed:
“The next morning we met with the Prosecutor General of Romania. He is called
Mr. Tiberiu, Mihail Nitu. And he did hide behind the secrecy of the inquiry. But he
was able to tell us that he had no proof whatsoever that Mr al Nashiri, who has an
ongoing case in the European Court of Human Rights, that he has been detained in
Romania. He was denying that, saying that no proof whatsoever. I am not optimistic
as to what will come out of this inquiry. To my question on how many witnesses he
had heard, how many hotels were in some kilometres around the supposed detention
centre, I got the impression that no real inquiry was being carried out. And nobody
wanted to help us to get access to the ORNISS centre. We really insisted meeting with
the Secretary of State but there was clear instructions to deny us, and no
argumentation whatsoever was received.”
9. The 2016 European Parliament Resolution
290. On 8 June 2016 the European Parliament adopted a follow-up
resolution to the 2015 EP Resolution (2016/2573(RSP)) (“the 2016 EP
Resolution”).
Its general part read, in so far as relevant, as follows:
“[The European Parliament,]
“N. whereas it is regrettable that the members of the fact-finding mission to
Bucharest of Parliament’s Committee on Civil Liberties, Justice and Home Affairs
were not able to visit the National Registry Office for Classified Information
(ORNISS) building, reported to have been used as a secret CIA detention site; ...”
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In respect of Romania, the resolution further stated:
“[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;
...
13. Recalls that the former director of the Romanian secret services, Ioan Talpeş,
admitted on record to the European Parliament delegation that he had been fully
aware of the CIA’s presence on Romanian territory, acknowledging that he had given
permission to ‘lease’ a government building to the CIA;
...
16. Welcomes the efforts made so far by Romania, and calls on the Romanian
Senate to declassify the remaining classified parts of its 2007 report, namely the
annexes on which the conclusions of the Romanian Senate inquiry were based;
reiterates its call on Romania to investigate the allegations that there was a secret
prison, to prosecute those involved in these operations, taking into account all the new
evidence that has come to light, and to conclude the investigation as a matter of
urgency;
...
18. Express its disappointment that, despite several requests (a letter to the Minister
of Foreign Affairs of Romania from the Chair of Parliament’s Committee on Civil
Liberties, Justice and Home Affairs, and another request at the time of the fact-finding
mission to the Secretary of State), the members of the fact-finding mission were not
able to visit ‘Bright Light’, a building repeatedly – and officially – reported to have
been used as a detention site;”
C. The 2007 ICRC Report
291. 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.
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
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AL NASHIRI v. ROMANIA JUDGMENT
paragraph 60 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.
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.
292. 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 Al Nashiri v. Poland (cited above, § 282).
293. 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
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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.
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. ...
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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.
...
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. United Nations
1. The 2010 UN Joint Study
294. 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).
295. 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
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121
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
degrading treatment, and how the practice of secret detention has left an indelible
mark on the victims, and on their families as well.”
296. In relation to Romania, the report (in paragraphs 116-124) stated,
among other things, the following:
“116. ... In [the 2004 CIA Report], the CIA Inspector General discussed the
interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States
sources with knowledge of the high-value detainees programme informed the experts
that a passage revealing that ‘enhanced interrogation of al-Nashiri continued through
4 December 2002’ and another, partially redacted, which stated that ‘however, after
being moved, al-Nashiri was thought to have been withholding information’, indicate
that it was at this time that he was rendered to Poland. The passages are partially
redacted because they explicitly state the facts of al-Nashiri’s rendition - details which
remain classified as ‘Top Secret’.
117. Using a similar analysis of complex aeronautical data, including data strings,
research was also able to demonstrate that a Boeing 737 aircraft, registered with the
Federal Aviation Administration as N313P, flew to Romania in September 2003. The
aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September
2003, and undertook a four-day flight ‘circuit’, during which it landed in and departed
from six different foreign territories - the Czech Republic, Uzbekistan, Afghanistan,
Poland, Romania and Morocco - as well as Guantánamo Bay, Cuba. Focus was also
placed on a flight between the two listed European ‘black site’ locations - namely
from Szymany (Poland) to Bucharest - on the night of 22 September 2003, although it
was conceivable that as many as five consecutive individual routes on this circuit -
beginning in Tashkent, concluding in Guantánamo - may have involved transfers of
detainees in the custody of the CIA. The experts were not able to identify any
definitive evidence of a detainee transfer into Romania taking place prior to the flight
circuit.
119. In its response to the questionnaire sent by the experts, Romania provided a
copy of the report of the Committee of Enquiry of Parliament concerning the
investigation of the statements on the existence of CIA imprisonment centres or of
flights of aircraft hired by the CIA on the territory of Romania.
...
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
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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.”
2. The 2015 UN Committee against Torture’s Observations
297. The UN Committee against Torture (“CAT”), in its Concluding
observations on the second periodic report of Romania adopted on 7 May
2015 – “the 2015 UN CAT Observations” – referred to the CIA HVD
Programme’s operation in Romania in the following terms:
“Secret detention centres and rendition flights
15. The Committee is concerned at persistent allegations of illegal detention of
persons in secret detention facilities of the Central Intelligence Agency and of
extraordinary rendition flights into and out of Romania in the context of the country’s
international cooperation in countering terrorism. It is also concerned that, in his
application filed in 2012 with the European Court of Human Rights, Abd al-Rahim
Hussayn Muhammad Al-Nashiri claimed that he had been illegally detained and
tortured in an Agency detention facility in Romania; this is currently being
investigated by the Romanian Prosecutor General. The Committee is also concerned
at the discrepancy between the information provided by the State party, and the
statements made in December 2014 by the former head of the Romanian intelligence
service which indicated that the authorities had allowed the Agency to operate
detention facilities between 2003 and 2006 where inmates allegedly suffered
inhumane treatment (arts. 2, 3, 12 and 16).
The Committee encourages the State party to continue its investigations into
the allegations of its involvement in a programme of secret detention centres, and
of the use of its airports and airspace by aeroplanes involved in
rendition
requests the State party to provide it with information about the outcome of any
ongoing investigations regarding the case of Abd al-Rahim Hussayn Muhammad
Al-Nashiri
.”
X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE
GOVERNMENT
298. The respondent Government produced transcripts of the statements
and testimony of witnesses heard by the prosecutor in the context of the
criminal investigation concerning the alleged existence of CIA secret
detention facilities in Romania, together with an English translation. At the
Government’s request, confidentiality was imposed on this material, in
accordance with Rule 33 § 2 of the Rules of Court (see also paragraph 12
above)
The Court and the applicant had access to the full versions of these
documents. In the English version , reproduced below, the names, job titles,
1
functions and other details that might lead to witnesses’ identities being
1. The material has been edited by the Registry and certain editorial corrections made. The
review does not affect the content of the documents.
AL NASHIRI v. ROMANIA JUDGMENT
123
revealed to the public have been removed. The names of the witnesses have
been anonymised by a single letter of the alphabet
2
.
A. Transcript of witness X
299. Witness X made the following statement to the prosecutor:
“During the period 2003-2005, I was [REDACTED] and the duties attached to the
post that I held included specific aspects concerning the security of civil aviation
airports.
The [REDACTED], had partnerships with various similar institutions from other
States, including equivalent structures in the United States of America. In the
framework of these bilateral relations, civil aviation aircraft hired by the partner
services on which their representatives travelled and landed at Bucharest Băneasa
airport. My presence at the airport was aimed at ensuring protocol relations during
processing as well as bilateral courtesy-setting according to diplomatic norms and
international rules.”
B. Transcript of testimony given by witness Y on 4 May 2015
300. The testimony given by witness Y to the prosecutor on 4 May 2015
reads, in so far as relevant, as follows:
“I have been informed that I will be heard as a witness concerning: the existence on
the Romanian territory, after 2001, of some secret detention and interrogation centres
of the United States of America’s Central Intelligence Agency.
...
I declare the following:
I have been informed of the object of this criminal investigation, namely of the fact
that a Saudi national, Abd Al Rahim Hussein Muhammad Al Nashiri, complained that
he had allegedly been brought on the Romanian territory and held in illegal detention
centre, administrated by officers of the Central Intelligence Agency (CIA) with help
from the Romanian authorities.
It is for the first time that I have heard about such a criminal complaint by this
citizen against the Romanian State. As a [REDACTED], I had never been asked by
the authorities of the United States of America to allow, to approve, or to facilitate the
hosting on the national territory of a location aimed at serving as a detention and
interrogation centre of individual suspected of participating in, initiating or organising
terrorist acts directed against the USA or its allies.
I do remember that, in the aftermath of the terrorist attacks of 11 September 2001 in
the USA, myself and other officials of the Romanian State, at that time, went to the
USA Embassy in Bucharest and we expressed our grief for what had happened and
condolences for the loss of human lives; in the course of the same year, I visited UN
headquarters, and on that occasion, I also visited the so-called ‘Ground Zero’. I do not
remember any express request addressed to me, to the [REDACTED], to the Head of
the [REDACTED], to the Head of [REDACTED], nor the Ministry [REDACTED], to
2
Redaction of the transcripts has been done by the Registry.
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AL NASHIRI v. ROMANIA JUDGMENT
intensify the cooperation with the American partners from the intelligence services in
the sense of facilitating [the creation] of detention centres on the territory of Romania.
I must say that I consider to be an invention this accusation according to which
Romania hosted CIA detention centres on its territory and also being a denigration
against the Romanian State, because in the [REDACTED] meetings such request from
the Americans had never been discussed. If such centres had existed, I would certainly
have known about their existence on the national territory, for as long as I was
[REDACTED]. Therefore, I restate that [REDACTED] never received such requests
from the USA’s then Presidents, George Bush Jr. and Bill Clinton, nor from the three
US ambassadors to Bucharest, during [REDACTED] and the impugned period
[REDACTED].
Concerning my statement [REDACTED], I state that I did not maintain in that
[REDACTED] that Romania had hosted CIA detention centres, but I only referred to
the overflight permission (drept de survol) to [and from] the Mihail Kogălniceanu
airport of Constanţa for the US military aircraft, in the context of Middle East
operations, in which we cooperated (troops and equipment transport or others).
In the context of Romania’s strategic objective of integration into the North Atlantic
Alliance and into the European Union, the exchange of information and the
cooperation
between the national intelligence services and their American
counterparts was done in a natural way, as a necessity. In this context, it is possible
that CIA offices were run on the national territory, but I cannot with certainty state it,
nor deny it, because I never personally gave such authorisation. I see no reason for the
Americans to request the setting-up of such facilities on Romanian territory.
I wish to state that the initiative of [REDACTED] was not mine; it was the initiative
of that [REDACTED] citizen that [REDACTED] asked me to have a discussion on
the general subject of the 25th anniversary of the Revolution; at least, it was that
which I was expecting, but it was never mentioned as such to me. I did not expect to
be questioned on the issue of the supposed existence of the CIA prisons in Romania.
I certainly consider that the heads of the main [REDACTED] services would have
consulted [REDACTED], should we have been asked to approve such detention
facilities on the Romanian territory, also given the fact that both of them,
[REDACTED] were members of the [REDACTED].
I heard about the statements publicly made by [REDACTED], and I intend to have a
discussion with him, to clarify things on this issue, but because he had gone on
holiday, I could not get in touch with him until now.
I have no other additional statements to make with regard to the object of this case.
...”
C. Transcript of witness Z
301. The statement made by witness Z to the prosecutor on
17 September 2013 reads, in so far as relevant, as follows:
“I, the undersigned, [Z] ..., declare the following:
Between December 2000 and March 2004 I was the [REDACTED]. In this capacity
I was appointed by the [REDACTED] to participate in the negotiations for the
accession of Romania to NATO. From [REDACTED] 2004, I held the office of
[REDACTED].
AL NASHIRI v. ROMANIA JUDGMENT
125
In this capacity, I had several meetings following which the first steps were taken
towards setting up the military and intelligence agreements in order to fulfil the
accession criteria. This was the co-called pre-accession phase, launched after the
Prague meeting of 2 November 2002 during which the NATO Member States had
decided that Romania was one of the next candidates for accession to NATO.
In this wide negotiation process, I was designated to prepare and negotiate those
documents aimed at making Romania ready for its accession to the system, by
adopting those necessary operative agreements that had to be effective by the time
Romania was declared a NATO member. Concretely, I/we addressed various issues
concerning the pre-accession, in the area of defence and intelligence cooperation.
Among those discussions, some developments or agreements took place in relation
to the American flights to be operated by the CIA which had permission to fly over
and land on Romanian territory. It was one of the steps that Romania had to take in
order to become a NATO member and it meant fulfilling one of the conditions
imposed on all partners of NATO members. From about 2003 onwards, several
contacts had taken place in that direction and they resulted in concrete agreements that
made possible the operation of the special American flights on Romanian territory, in
different conditions from those provided for by international customs. It should be
understood that those flights had a special character and they were not under an
obligation to obey the usual rules imposed on civil flights.
I state that according to the information I had at that time, such practice of [special]
flights was current and particular to all NATO Member States.
Concerning the issue of some locations that were to be provided for exclusive use by
our American partners, I state that I/we insisted, and it was agreed, that in all those
locations the Romanian State should have no participation and all activities were to be
undertaken exclusively by the American partners under their exclusive responsibility.
This way of doing it was the natural outcome of complying with the condition of
attitude between allies. All the discussions in which I participated only concerned the
status of the [REDACTED].
I have no knowledge about any detention centre or prisoners taken and located on
Romanian territory or about any special treatment applied to such prisoners.
I only heard about this issue, and especially about prisoners taken on Romanian
territory and detained here, from the press, when the international scandal exploded. I
considered that those scandals were aimed at discrediting Romania’s accession to
NATO and its capacity as a NATO member and as an ally of the United States.
I appreciate that by continuing those scandals someone mostly wants to generate
disputes at a high political level in the Eastern European Countries that were accepted
during the last NATO accession wave.
[signature] [REDACTED]”
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D. Transcript of testimony given by witness Z on 18 June 2015
302. The testimony given by witness Z to the prosecutor on 18 June
2015 reads, in so far as relevant, as follows:
“I have been informed that I will be heard as a witness concerning: the existence on
Romanian territory, after 2001, of some secret detention and interrogation centres of
the United States of America’s Central Intelligence Agency. ...
I declare the following:
I have been informed of the object of this criminal investigation, namely of the fact
that a Saudi national, Abd Al Rahid Husseyn Mohammad Al Nashiri, complained to
the Romanian judicial authorities about the fact that he, as well as other individuals
suspected of being members of a terrorist organisation, had been brought to Romanian
territory and held in illegal detention facilities, administered by officers of the Central
Intelligence Agency (CIA) and subjected to physical and psychological torture in
order for them to obtain information concerning terrorist organisations.
I do not know anything about the facts this complaint refers to and, as can be easily
observed, it seems that the Saudi national himself does not know any factual elements
that might substantiate his complaint.
I only heard about him when his complaint became a matter of public knowledge.
By virtue of the public offices of [REDACTED] that I previously held, among
which the public office of [REDACTED] and that of [REDACTED], and that of
[REDACTED], I firmly maintain that the allegations publicly spread concerning the
supposed existence, on the territory of Romania, of illegal detention centres
administered by the United States of America, through the CIA, centres in which
several individuals suspected of being members of a terrorist organisation or of having
committed terrorist acts have been held, are nothing but simple allegations or
suppositions of some persons that have nothing to do with the realities of the
Romanian State.
At the time of the terrorist attack of 11 September 2001 in New York, I held, as
mentioned before, the office of [REDACTED]. On the day of the attack, the then
[REDACTED], publicly expressed by means of an official statement the commitment
of the Romanian authorities to support the USA in their fight against terrorism, by
means that were to be subsequently established by common agreement, upon the
request of US officials. Immediately after the terrorist attack, in the following
48 hours, [REDACTED] called for a meeting of the [REDACTED], which endorsed
the official statement of the [REDACTED]; following which Parliament also
approved the [REDACTED] document.
Immediately after those terrorist attacks, our contacts with the representatives of the
US diplomatic mission in Romania and other Western diplomatic missions increased
and the steps taken by Romania in order to become a NATO member were
accelerated.
Consequently, in November 2002, at the Prague conference of the NATO Member
States, taking into account the progress made, the Heads of State and Government of
the NATO Member States invited Romania to join the Alliance.
It is true that US Government officials asked the Romanian authorities to offer some
locations, on Romanian territory, to be used for actions of combating international
terrorist threats, by the representatives of the CIA, on the same pattern as that used in
AL NASHIRI v. ROMANIA JUDGMENT
127
the other NATO Member States. This discussion was one of principle, and finally one
single location was offered, without specifying the nature of that location, whether it
should have been an office or an office building or land for building some facilities, or
some other form. It was understood, at that stage, in 2003, that it should be an office
building in Bucharest.
The requested site was to be identified and made available by the [REDACTED].
I would make clear that I was directly in charge of these negotiations, having the
coordinating role, while the person designated from the Ministry of [REDACTED], in
charge of the discussions with the American partners, was the then [REDACTED].
As far as I know, [REDACTED] made available to the CIA, in Bucharest, one site
which afterwards was converted into [REDACTED] in Romania; this is a method
common to the relationships with other NATO Member States.
I maintain that I never publicly admitted that, in Romania, CIA illegal detention
centres had existed, with the support of the Romanian governmental authorities, in
which various persons had been illegally detained, during the US-initiated State
detention programme.
I only stated that the Romanian authorities cooperated in the anti-terrorist war on an
exchange of information basis with the American intelligence services, including the
CIA, also by offering a site for the CIA activities.
I do not wish to comment on the information given by the mass-media in relation to
the persons that were supposed to have been illegally detained on Romanian territory
in CIA-run detention centres, the source of this information being the partially
published US Senate Report on the detention and interrogation of terrorism suspects
programme; I consider that it is the responsibility of the USA to clarify this issue, as
long as I have no knowledge of such operations on Romanian territory and I do not
know anyone in connection with such a matter.
The name of Abu Faraj Al-Libi, Hassan Gul, Janat Gul does not sound familiar to
me, given the fact that, as stated before, I did not approve, I did not know and I was
not informed of any operation for the transfer or detention of a foreign national by the
CIA.
Concerning the public debate on the existence of CIA directly or indirectly
controlled flights with a special destination on Romanian territory, I would like to say
that such flights were operated also in German, English, Italian and other territories,
and that they did not represent a Romanian particularity.
I have nothing else to state about the facts in this file. ...”
E. Transcripts of statements from other witnesses
303. The Government produced twenty-four transcripts of statements
from twenty-three witnesses obtained during the criminal investigation,
together with an English translation (see also paragraphs 12 and 173 above).
These statements were obtained at various dates at the end of July and
beginning of August 2013 and, subsequently, in September 2015.
304. Five witnesses said that in 2003-2005 they “[did] not know
anything about the aircraft with American registration”, “[were not]
informed about special flights”, “[had] no knowledge regarding the flights
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AL NASHIRI v. ROMANIA JUDGMENT
that came or went” or “[did] not know any details regarding the private
flights”.
305. The statements of the remaining eighteen witnesses, in so far as
relevant, read as follows.
1. Witness A
306. The transcript of witness A’s statement of 30 July 2013 read:
“... I, the undersigned [A] [personal data], state that I work for the [REDACTED], as
a [REDACTED].
From 2003 to 2005, I worked for the [REDACTED] at Bucharest Băneasa Airport,
as [REDACTED]. As such, I worked mainly at the [REDACTED] and at other
specific departments. In all the departments, my work was governed by the provisions
of the [REDACTED] and by the working methodologies. For example, at
[REDACTED], I worked in the booths placed on the entry or exit corridor, also I
assisted the passengers at the boarding gate and I escorted them to the regular aircraft.
Being asked about the ... planes, I don’t recall having heard about the mentioned
aspects, namely about the disembarkation of clandestine passengers and, implicitly, I
did not go to the planes referred to in the questions.
There were some cases when private aircraft, according to flight plans, parked in
front of the protocol lounge, where we went, together with customs officials, for the
checking of documents. There were cases when, together with a RAS employee, we
went to the protocol lounge for the checking of the passengers’ documents – various
officials. I declare that I do not recall cases of disembarkation of clandestine
passengers.”
2. Witness B
307. The transcript of witness B’s statement of 30 July 2013 read:
“... I, the undersigned [B], state as follows:
[REDACTED] founded [REDACTED] in 1994 with the purpose of providing
handling services for the business aviation at Băneasa Airport. Together with the
Airport, I promoted this type of traffic at Băneasa taking into consideration that there
was hardly any traffic at the airport as the domestic Tarom flights had just moved to
Otopeni. We provide handling services specific to business aviation, which means
everything
that
is
connected
to
the
embarkation/disembarkation
of
passenger/cargo/mail aircraft.
For the business aviation there were some specific requests different from the
regular commercial aviation, meaning that, usually, business flights’ operators sent in
advance a request for services which was confirmed by our operating agents.
At the specified time (2003-2005), [REDACTED] operating agents met the aircraft
upon arrival and accompanied it upon departure together with the border guard and a
customs official.
For the business aircraft, our operating agents accompanied the crew and undertook
the embarkation/disembarkation of the passengers/luggage.
As for the transiting aircraft with American registrations, our personnel were joking
about them saying that they were spies.
AL NASHIRI v. ROMANIA JUDGMENT
129
The majority of passengers on these aircraft were men.
Usually, our personnel servicing these aircraft did not enter the planes. Those
responsible for the handling papers and for receiving the payment for the handling
services and the airport taxes went to the aircraft and then, together with a member of
the crew, came back to our office in the airport where the final handling sheet was
drawn up and the payment was made. At the specified time, I was sometimes present
at the airport making unannounced checks. As I did not have a uniform, I personally
did not go to the aircraft.
In the airport I did not notice any illicit movements in relation to the
embarkation/disembarkation of passengers unknown to us or of passengers that did
not go through the normal process.
During the boom in private and commercial aviation, planes were parked according
to their weight (the term ‘the heavy ones’ was used).
To the question whether it was possible for a passenger to be brought in outside the
legal arrival process, I do not believe that such a thing is possible. The airport had a
fixed and mobile security service.
I have not heard rumours about detainees being flown on the transiting aircraft with
American registrations.
I indicate that I was asked to provide documents about the handling of these aircraft
by a parliamentary commission and that I forwarded all kind of documents, but I did
not testify.
Also, I would make mention of the fact that, unlike in the case of commercial
aviation where the cargo is documented (by way of Pax Manifest, General
Declaration, Cargo Manifest), for business aviation there are generally no documents
drawn up concerning the identity of the cargo.”
3. Witness C
308. The transcript of Witness C’s statement of 30 July 2013 read:
“... I, the undersigned [C] [personal data], state as follows:
From 2003 to 2005, I was employed by the Romanian Airport Services as
[REDACTED]. It was a [REDACTED] job and I was responsible for the documents
necessary for take-off without going to the aircraft because I do not have a driving
licence. Access to the aircraft is possible only by way of a vehicle.
After the landing of an aircraft, the practice began with the movement of the Border
Police, the custom agents and the airport security agents and of the RAS operating
agent.
With the crew’s approval, border police entered the aircraft and took the passports
and the custom agents were present for the checking of the documents, if necessary. If
the aircraft was inspected, the pilots were accompanied by the operating agent by car
to the firm’s office. If need be, hotel reservations were made or, if they already had
reservations, the agent accompanied them to the hotel without passing through the
office.
For vehicles from outside the airport, access was permitted only after being checked
by the security agents. Also, if such a vehicle had to enter the airport premises, access
was allowed only accompanied by an agent of the airport security department.
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AL NASHIRI v. ROMANIA JUDGMENT
I have no knowledge of any aircraft or transport of detainees undertaken by the
American authorities on Romanian territory.”
4. Witness D
309. The transcript of Witness D’s statement of 30 July 2013 read:
“I, the undersigned [D] [personal data], state as follows: From 2003 to 2005 I
worked at Bucharest Băneasa International Airport in the [REDACTED] as
[REDACTED]. In this position, I was responsible for the access to airport premises of
authorised persons and vehicles.
During that time, several private aircraft landed, but they did not come within my
responsibility as I was working at a fixed point, without patrolling, and as such I had
no contact with incoming/outgoing aircraft or passengers. I declare that during that
time there was no patrol service in the proximity of the aircraft, the airport being
guarded by the gendarmes and afterwards by a security firm.
I had no knowledge about the fact that these private flights were used for the
transport in/out of Romania of detainees, finding out about these things many years
later in the press. ...”
5. Witness E
310. The Government produced transcripts of two statements given by
Witness E; the first of 31 July 2013, the second one of an unspecified date.
311. The transcript of the statement given on 31 July 2013 read:
“... I, the undersigned [E] [personal data], state as follows:
From 2003 to 2005, I was [REDACTED] in the airport [REDACTED] department
at International Băneasa Aurel Vlaicu Airport and, at present, I am [REDACTED].
During that time, I had personal knowledge of some private flights that landed at
night time at Bucharest-Băneasa airport as being flights with a special status.
These flights were parked on the airport platform for about 10-15 minutes, after
which they took off.
I personally have knowledge of 3-4 such flights. The only person approaching these
flights was [REDACTED] [X], who went to the aircraft in the SRI working van-type
vehicle. Other persons on duty were informed early on about the arrival of these
flights and did not have access to these planes.
I do not know exactly whether [X] entered the planes or just stayed by them. I did
not see anyone embarking onto or disembarking from these aircraft.
The head of the security department at that time was [REDACTED], and the head of
the control tower and air traffic navigation was [REDACTED]. ... .”
312. The transcript of Witness E’s statement of an unspecified date read:
“... I, the undersigned E [personal data], state as follows:
From 2003 to 2005, I was [REDACTED] in the airport [REDACTED] department
at International Băneasa Aurel Vlaicu Airport and, at present, I am [REDACTED].
During that time, I had personal knowledge of some private flights that landed at
night time on Băneasa airport as being flights with a special status.”
AL NASHIRI v. ROMANIA JUDGMENT
131
6. Witness F
313. The transcript of Witness F’s statement of 31 July 2013 read:
“... I, the undersigned [F] [personal data], state as follows:
From October 2001 to January 2007, I was employed by [REDACTED] (Băneasa
Airport) as [REDACTED].
In this capacity, according to my job description, I was responsible for the access
control of persons, in the airport area, access control of vehicles in the movement area
and access control to the [REDACTED].
With regard to the access of vehicles on the airport premises, the access of vehicles
had to be authorised, all the vehicles and also their drivers were registered, had a
special tag and an access permit, so that access was permitted only to the person
designated to drive the vehicle, on the basis of a special permit of access to the airport
premises, the identification tag where the access areas were indicated, the driving
licence and a personal identification document, and for the vehicle on the basis of the
vehicle’s identification tag and the access permit for the movement area.
After the checking of the vehicle, it was necessary to obtain the authorisation of the
deputy commander of the airport for access by the vehicle. After the deputy
commander had given his approval, the vehicle was noted in a table, mentioning the
time of entry, the number of the access permit, the identification number, and the
destination within the airport’s premises.
After the access of the vehicles or of the vehicle a second check was operated by the
SRI.
It follows that the access of the vehicles, as well as the access of the persons who
were accompanied to the access areas of the airport for identification control, etc., was
carried out according to the strict rules of the airport security.”
7. Witness G
314. The transcript of Witness G’s statement of 1 August 2013 read:
“... I, the undersigned [G] [personal data], state as follows: From 2003 to 2005 I
worked at Bucharest Băneasa Airport in the [REDACTED] Department as
[REDACTED], receiving knowledge relating to the flights with the ‘N’ call sign, that
were announced as special flights to which we were not requested.
Generally, these were night flights that arrived for refuelling, and to this effect the
operator handling the refuelling would go to the plane. If there was a request for a
handling agent, somebody from RAS would go. ...”
8. Witness H
315. The transcript of Witness H’s statement of 1 August 2013 read:
“... I, the undersigned [H] [personal data], state the following:
Starting in 2003 and up to February 2004 I worked for the [REDACTED] of
Băneasa International Airport as [REDACTED]. I handled the security checks of
foreign and Romanian citizens entering/exiting Romania and who were in transit
across the Romanian border, in compliance with the orders given by the shift chief
and the flight plan established for each workday.
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AL NASHIRI v. ROMANIA JUDGMENT
I processed according to the flight plan all the flights with the ‘N’ call sign, without
them having a stop in Bucharest. All the passengers from the flights were processed
pursuant to the law.
I did not see amongst the passengers of the planes individuals with special status,
wanted at national or international level. ...”
9. Witness I
316. The transcript of Witness I’s statement of 1 August 2013 read:
“... I, the undersigned [I] [personal data], state the following:
From 2003 to 2005 I worked for the Romanian Airport Services as [REDACTED]. I
handled the servicing of planes that landed at or departed from Bucharest Airport. As
part of my job assignment I also handled refuelling, catering, and receiving payments
for handling services.
It is worth mentioning that a file exists with all the flight details for all the planes
that landed or departed. If there is such a file, it means that that flight landed at or
departed from Băneasa Airport.
Regarding the American flights with the ‘N’ call sign, as in the case of planes flying
under other flags, my duty was to provide refuelling, crew transport from the airport
to the hotel, catering services, weather reports.
Usually, when a technical stop was involved, I would go to the plane alone,
accompanied only by the driver of the refuelling vehicle.
I declare that I never saw a detainee – passenger, especially of Arab origin, being
boarded or disembarked onto/from a plane, American or otherwise. ...”
10. Witness J
317. The transcript of Witness J’s statement of 2 August 2013 read:
“... I, the undersigned [J] [personal data], state the following:
From 2003 to 2005 I worked as [REDACTED] at [REDACTED] handling the
checking of documents needed to cross the State border, in both directions. Regarding
the private flights that landed in or departed from Romania, these were processed at
the Protocol Lounge of the airport; the individuals were taken from the plane by an
RAS car and were brought to the reception area and processed according to the work
procedure.
I also declare that there was no need for an operational team to go to the plane, as
the passengers were brought to the reception area. Likewise it is not possible for the
passengers to be taken into unauthorised vehicles and leave the airport premises
without passing through the specially designated checkpoints.
Personally, I did not see any individual who was boarded onto or disembarked from
the American planes, other than the crew and the passengers that we checked. ...”
11. Witness K
318. The transcript of Witness K’s statement of 2 August 2013 read:
“... I, the undersigned [K] [personal data], state the following:
AL NASHIRI v. ROMANIA JUDGMENT
133
From 2003 to 2005 I was employed at [REDACTED] and I handled the services
being provided by the airport to planes that were arriving at or departing from
Băneasa International Airport. The services included refuelling the planes, cleaning,
handling crew transfer to and from the airport. In practice, communication was
established with the crew who made the request for services and then we organised
the teams, according to the request. Regarding the flights under the American flag,
these were flights with a technical stop at Băneasa Airport (refuelling). I did not see
any passengers disembarking from or boarding these planes. Also, in order for a car to
have access to the parking platform outside the airport, they would require an
authorisation issued by the airport administration. ...”
12. Witness L
319. The transcript of Witness L’s statement of 2 August 2013 read:
“... I, the undersigned [L] [personal data], state the following:
– Between 2003 and 2005 I was an employee of Băneasa Airport [REDACTED].
– As part of my job description, I handled the access of employees and vehicles that
entered the secure area of the airport.
– Regarding the private flights under the US flag, I declare that nothing suspicious
caught my attention.
– I did not see any individuals that might have detainee status who were handcuffed
and who were boarded onto or disembarked from the private flights that landed at the
airport. ...”
13. Witness M
320. The transcript of Witness M’s statement of 2 August 2013 read:
“... I, the undersigned [M] [personal data], state the following:
Between 2003 and 2005 I worked as [REDACTED] for Băneasa Airport
[REDACTED] and I handled security inside the airport at personnel access and
vehicle and personnel checkpoints; it was not part of my job description [illegible]
activities with the planes that entered or exited the platform.
We were [not] informed about the special flights not even by the shift manager.
They were handled by the deputy commander, the border police, transport police,
customs and RIS. ...”
14. Witness N
321. The transcript of Witness N’s statement of 5 August 2013 read:
“... I, the undersigned [N] [personal data], state the following:
From 2003 to 2005 I worked for the Ministry of [REDACTED] at Băneasa Airport,
as [REDACTED].
I declare that in 2006 I worked at REDACTED] and until that date I had processed
documents alongside [petty –sic!] officers with more work experience as I had arrived
in Bucharest from the [REDACTED].
I have knowledge of private planes landing at Băneasa Airport but I did not note
anything out of the ordinary when they landed.
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AL NASHIRI v. ROMANIA JUDGMENT
When private planes landed, RAS employees would go by bus, pick up the pilots
and bring them to the Border for travel documents processing.”
15. Witness O
322. The transcript of Witness O’s statement of 5 August 2013 read:
“... I, the undersigned [O] [personal data], state the following:
Between 2003 and 2005 I worked for [REDACTED] as [REDACTED]; as part of
my job I provided services to planes that landed at Băneasa International Airport,
private and charter flights.
During that time, several private flights with US-registered aircraft were operated.
These flights went according to plan, carrying business people. One evening, after
dawn, a plane landed that was treated differently, as officials from the airport and
from the Counter-terrorism squad asked us to stay in the office and not go out to the
plane that was about to land. We complied with the request.
I cannot recall the date of the flight or the call sign.
I never saw a similar case in my time working for [REDACTED].
At that time I did not know the nature of those flights, and I also did not know
whether similar flights were operated at Băneasa Airport.
After being asked, I can confirm that on the airport’s platform vehicles cannot gain
access without prior approval/permission. ...”
16. Witness P
323. The transcript of Witness P’s statement of 5 August 2013 read:
“... I, the undersigned [P] [personal data], state the following:
Between 2003 and 2005 I worked at [Government Editor’s note: Bucharest -
Băneasa International Airport – Aurel Vlaicu] in [REDACTED].
I know that special flights were operated at night and in the time frame noted above
I saw a plane without a call sign that was positioned in the middle lane of AIBB – AU
platform, on the north side.
I saw the following activity going on at the side of the plane:
- Activities carried out by RAS handling operators;
- A passenger disembarking accompanied by a dog, pit bull or Amstaff, and they
walked around the plane and after approximately 10 minutes they boarded the plane.
I note that the procedure for transporting pets was violated. Pets can be transported
in cages that are stored in the plane’s hold, in the plane only ... can travel.
The plane parked on the AIBB - AV was a GOLF that did not require a mobile
stairway, the plane being equipped with an airstair on the plane’s door.
The individual who disembarked with the dog was dressed in dark overalls with
military boots. ...”
17. Witness Q
324. The transcript of Witness Q’s statement of 6 August 2013 read:
AL NASHIRI v. ROMANIA JUDGMENT
135
“... I, the undersigned [Q] [personal data], state the following:
Between 2003-2005 I worked for [REDACTED] as [REDACTED], being
subsequently promoted to [REDACTED].
In this position, I serviced flights that operated at Băneasa Airport, namely check-in
procedures, boarding/disembarking, luggage transport and passenger transport from
the plane to the terminal and vice-versa and also providing the services requested by
the crew (cesspool emptying, drinking water, catering, etc.).
Several flights under the US flag arrived during this time and there were no other
special services provided that were different from those provided to any other flight
that arrived at Bucharest Băneasa Airport.
I do not have any knowledge of any special activity that was provided for these
flights. ...”
18. Witness R
325. The transcript of Witness R’s statement of 8 September 2015 read:
“... I am [REDACTED], from the founding of this institution in [REDACTED] 2002
to the present day. The offices of the institution are found in Bucharest,
[REDACTED]. From the setting up of the institution to the present day we have
always had the same location (with an adjacent location, similar to an interior garden,
plus 1 meter of ground all around). Since the time this building was assigned to its
present purpose, there have been no major modifications, such as the building of
annexes, of other buildings, interior redecoration, etc. From the analysis of the annual
budgetary execution of the institution, one can observe that there were no major funds
allocated that may be suspected of being used for the setting up of spaces that could
be used as secret detention centres, as some media outlets absurdly assert.
In other words, since the founding of the institution, which was already mentioned,
to the present, our headquarters have never been used as a detention centre for persons
suspected of terrorist acts by the CIA or by other governmental institutions, national
or foreign, and no activities in relation to this subject have taken place.
By its nature, the building [where the ORNISS is located] cannot be used for such a
purpose.
I am aware of the information circulating in the public space, national or
international, about the fact that the [ORNISS] building has been used as a location
for the detention of persons suspected of terrorism by the CIA and I strongly affirm
that these are merely fallacies.
I declare that the institution [REDACTED], including its location, is regularly
subject to checks by the competent institutions within NATO and the European
Union. During these checks, no indications regarding the involvement of the
[ORNISS] in the detention of persons suspected of terrorism, from the setting up of
the institution and afterwards, have been identified.
The activity of the institution is governed by the [REDACTED]. Anyone
[REDACTED] will notice that the [ORNISS] is not a part of the national system of
preventing and countering terrorism or of the national system of public order and
national security even though, due to the specific nature of its activity, it collaborates
with institutions involved in the said systems.
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AL NASHIRI v. ROMANIA JUDGMENT
Neither personally, nor institutionally, do I/we have relevant information about this
subject (the prevention and fight against terrorism). I declare that, after the September
11 2001 attacks, we were never asked to participate in the activities meant to establish
the type of help that Romania was to offer the United States of America to help with
the prevention and fight against terrorism. ...”
XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT
A. RCAA letter of 29 July 2009
326. The applicant produced the RCAA letter to the APADOR-CH,
dated 29 July 2009 (see also paragraph 113 above), which read, in so far as
relevant, as follows:
“The Romanian Civil Aeronautical Authority located in ... represented by ... in
compliance with the stipulations of the court decision no. 3580 of 15 December 2008
pronounced by Bucharest District Court, we hereby present in the annex to this
document the answers to your inquiries included in address no. 261/07.08.2008.
Annex to the address no. 19602 of 29.07.2009
General specification:
The data provided below do not indicate with certainty that these flights were
carried out. According to the regulations in effect and applicable on the respective
dates, AACR does not have any document that would identify the actual performance
of these flights. The information represents planned intentions that AACR was
notified about.
...
01.01.2003 – 31.12.2003
N313P – 2 flights
N478GS – 1 flight
N379P – 1 flight
N85VM – we do not have any records of the requested information
N227SV – we do not have any records of the requested information
N2189M – 2 flights
01.01.2004 – 31.12.2004
N313P – 2 flights
N478GS – we do not have any records of the requested information
N379P – we do not have any records of the requested information
N85VM – we do not have any records of the requested information
N227SV – we do not have any records of the requested information
N2189M – we do not have any records of the requested information
Answer for point 3:
AL NASHIRI v. ROMANIA JUDGMENT
137
01.01.2003 – 31.12.2003
N313P – 2 flights
1. Flight itinerary (departure sites, stop sites, destination place): Constanţa - Rabat
Airport(s) in Romania where it landed: Băneasa
The date of landing and the date on take-off: 23.09.2003; we do not hold any
recordings of the date when it took off
Flight purpose: private non-commercial
Number of people present on board of the aircraft at landing and the number of
people present on board of the aircraft at take-off:
-
in Romania, it is not mandatory to report the number of people (crew and
passengers)
-
-
Crew –
Passengers: 9 (according to the date provided by the applicant).
2. Flight itinerary (departure sites, stop sites, destination place): Szczytno –
Constanţa
Airport(s) in Romania where it landed: Băneasa
The date of landing and the date of take-off: 22.09.2003; we do not hold any
recordings of the date when it took off
Flight purpose: private non-commercial
Number of people present on board of the aircraft at landing and the number of
people present on board of the aircraft at take-off:
-
in Romania, it is not mandatory to report the number of people (crew and
passengers)
-
Crew –
-
Passengers: 9 (according to the date provided by the applicant)
...
01.01.2004 – 31.12.2004
N313P – 2 flights
Flight itinerary (departure sites, stop sites, destination place): we do not hold any
records of the departure site – Timişoara
Airport(s) in Romania where it landed: Timişoara
The date of landing and the date on take-off: 25.01.2004; we do not hold any
recordings of the date when it took off
Flight purpose: maintenance refuelling stop
Number of people present on board of the aircraft at landing and the number of
people present on board of the aircraft at take-off:
-
-
Crew – we do not hold any records of the requested information
Passengers – we do not hold any records of
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AL NASHIRI v. ROMANIA JUDGMENT
...”
B. List of twenty-one
Government
327. As part of documents included in the investigation file, the
Government produced tables containing details of twenty flights labelled as
“suspicious”. The tables, which included such data as flight numbers, dates,
types and purposes of flights, type of journey, final routes, flights operators,
organisers, aircraft, crew, passengers as well as names of the Romanian
handling personnel and the Border Police and airport security personnel
were available to the Court and the applicant in a full, unredacted version.
For the purposes of the non-confidential part of the procedure before the
Court, the flight data can be summarised as follows.
(a) Four out of twenty-one flights occurred before 23 September 2003.
The three landings en route from or to Baku took place in Bucharest
Băneasa Airport on 24 April, 9 May and 16 June 2003, respectively. One
landing, en route from Amman occurred in Constanţa Mihail Kogălniceanu
Airport on 13 June 2003.
(b) The remaining seventeen flights took place between 23 September
2003 and 5 November 2005.
(c) The fifteen flights into in Bucharest Băneasa Airport took place on
the following dates:
- 23 September 2003, flight N313P
- 26 October 2003, flight N379P
- 25 January 2004, flight N313P
- 27 January 2004, flight N85VM
- 12/13 April 2004, flight N85VM
- 1 August 2004, flight N288KA
- 5 December 2004, flight N478GS
- 6 December 2004, flight N478GS
- 18 February 2005, flight N787WH
- 23 July 2005, flight M308AB
- 28 July 2005, flight N308 AB
- 21 August 2005, flight N860JB
- 6 October 2005, flight N308AB
- 20 October 2004, flight N789DK
- 5 November 2005, flight N1HC
(d) The two flights into Constanţa Mihail Kogălniceanu Airport took
place on the following dates:
- 1 February 2004, flight N227SV
- 25 August 2004, flight N308AB
AL NASHIRI v. ROMANIA JUDGMENT
139
C. Documents
concerning
the
N313P
rendition
mission on
16-28 January 2004 produced by Senator Marty and Mr J.G.S. in
the course of the PowerPoint presentation
328. In the course of their PowerPoint presentation (see also
paragraphs 367-376 below), Senator Marty and Mr J.G.S. produced a
number of documents, including flight logs for the N313P rendition circuit
on 16-28 January 2004, as well as a ground handling note and air navigation
sheet filed by the Romanian authorities in connection with the N313P’s
landing in Băneasa Bucharest City Airport on 26 January 2004.
According to the flight logs records, N313P departed from Washington
on 16 January 2004 flying to Shannon, Ireland. On 17 January 2004 it left
Shannon for Larnaca, Cyprus where it stayed for four days, until 21 January
2004. On the latter date, at 18:39 it took off for Rabat Morocco, arriving
there at 23:48. It departed from Rabat to Kabul, Afghanistan on 22 January
2004 at 02:05, arriving there at 9:58 and then left Kabul for on the same day
in the late afternoon for Alger, Algeria. After staying around one and a half
hours in Alger, the plane left at 21.36 for Palma de Mallorca, Spain, landing
there late in the evening. The next day, i.e. 23 January 2004 the plane left
for Skopje, Macedonia, landing there at 19:51. On 24 January 2004 at 01:30
N313P departed from Skopje to Baghdad, Iraq and, after a stopover lasting
some one hour, left for Kabul at 07:15. On 25 January 2004 it departed from
Kabul at 18:23 and arrived at Băneasa Bucharest Airport on the same day at
23:51.
The plane stayed in Bucharest for slightly over one hour and took off
from there to Palma de Mallorca on 26 January 2004 at 01:03. It stayed in
Palma de Mallorca until 28 January 2004 and left for Washington at 10:08
on that day. The flight was operated by Stevens Express Leasing Inc..
329. The ground handling charge note (no. 00077/04) was issued for
N313P (airline: “Business Jet Solutions”) by the RAS in Băneasa-Bucharest
City Airport on 26 January 2004 and included landing, lighting and
navigation services fees amounting in total to EUR 2,678/3,416 US dollars
(USD). It indicated the actual arrival date/time as “26.01.04 01:22” and an
identical date and time as the “estimated departure date/time”.
330. The air navigation sheet (no. 174) was issued by the Romanian Air
Traffic Services Administration (“ROMATSA”) on 26 January 2004 for
N313P (airline: “Business Jet Solutions”). It included navigation services
amounting to USD 631.40.
It indicated the landing time as 23:35 on 25 January and the take-off time
as 00:40 on 26 January 2004.
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AL NASHIRI v. ROMANIA JUDGMENT
D. The 2010 Findings of the Lithuanian
National Security and Defence (extracts)
331. The applicant produced a copy of the Lithuanian Parliament –
Seimas – document setting out the Seimas Committee on National Security
and Defence (“CNSD”) findings concerning the possible transportation of
persons to and incarceration in the territory of the Republic of Lithuania by
the CIA (“the CNSD Findings”). The document included findings made in
the course of a parliamentary investigation conducted by the CNSD in
connection with publicly voiced allegations concerning the CIA detention
facilities in Lithuania, and those findings were endorsed by the Seimas in its
resolution No. XI-459 adopted on 19 January 2010 (for further details see
Abu Zubaydah v. Lithuania, cited above, § 174).
332. Sections relating to the CIA rendition aircraft relevant to the
present case read as follows:
“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 Dick Marty,
..., and in the data provided by the state enterprise Oro navigacija:
...
(3) ’Boeing 737’ no N787WH, landed in Vilnius on 6 October 2005;
... 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:
...
(2) ’Boeing 737’, registration no N787WH (6 October 2005, route Antalya-Tallinn-
Vilnius-Oslo. A letter of Vilnius International Airport dated 7 December 2009 states
that this aircraft arrived from Tirana at 4.54 am and departed at 5.59 am. According to
the documents of the SBGS [the State Border Guard Service], this aircraft arrived
from Antalya and departed for Oslo).
...
During the investigation, three occasions were established on which, according to
the testimony of the SSD [the State Security Department] officers, they received the
aircraft and escorted what was brought by them with the knowledge of the heads of
the SSD:
...
(2) ’Boeing 737’, registration No. N787WH, which landed in Vilnius on 6 October
2005. According to the 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 the aircraft. No customs inspection of the aircraft was carried out;
...”
AL NASHIRI v. ROMANIA JUDGMENT
141
E. Mr Hammarberg
333. The applicant produced an affidavit made by Mr Hammarberg on
17 April 2013. That document read as follows:
Affidavit of Thomas Hammarberg
“1. I, Thomas Hammarberg, served as Council of Europe’s Commissioner for
Human Rights during 2006-2012. I now work on specific human rights projects for
the United Nations and the European Union.
2. During my tenure as the Council of Europe’s Commissioner for Human Rights, I
obtained information on methods used in the efforts to respond to terrorist activities
and to prevent further terrorist violence. I had to conclude that some of the
governmental measures during these efforts contradicted agreed standards of human
rights. I summarised my concerns in two ‘Human Rights Comments’, published in
September 2011 ... (The two comments are submitted as Attachments A and B to this
affidavit).
3. My office assembled a considerable amount of data and other information
relating to CIA secret detention and extraordinary rendition in Europe through our
contacts with credible confidential sources, investigative journalists, expert non-
governmental organisations, and lawyers acting on behalf of prisoners. Information on
flights associated with extraordinary rendition was obtained from the relevant flight
control agency in Europe and could be compared with similar local airport data. I was
assisted in the compiling of all of this data and information by an expert colleague,
[Mr J.G.S.].
4. In the case of Romania, I became convinced that the information that we had
obtained showed that the U.S. Central Intelligence Agency had kept suspects detained
in a location in Bucharest for the purpose of interrogation. I raised this issue several
times with Romanian diplomats asking for a serious investigation into this matter, to
no avail.
5. On 30 March 2012, I delivered a dossier to the Romanian diplomatic mission in
Strasbourg for the General Prosecutor in Bucharest. The purpose was to encourage the
General Prosecutor to initiate such an investigation.
6. I had previously submitted information of a similar kind to the General
Prosecutor in Warsaw which became part of its investigation into the CIA detention
facility in Poland.
7. In the communication to the General Prosecutor in Bucharest, I had
recommended that ‘this important matter be subjected to judicial scrutiny, by means
of opening a prosecutorial investigation, at the earliest possible juncture’.
8. Neither myself nor my successor as Human Rights Commissioner received any
formal response to the dossier.
9. The dossier submitted to the General Prosecutor at a minimum contains sufficient
material to justify a serious investigation into serious human rights abuses associated
with CIA secret detention and rendition operations in Romania.
10. I am of course aware that confidentiality is protected by governments on aspects
of methods used in countering terrorism. This should be respected when relevant but
not accepted as a justification for not addressing well substantiated requests for
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AL NASHIRI v. ROMANIA JUDGMENT
investigations into serious human rights violations, including torture. Such a policy
will promote impunity.
11. I hereby officially submit the dossier I provided to the Romanian General
Prosecutor, which was kept confidential until recently. (The dossier is submitted as
Attachment C to this affidavit).
Tbilisi, 17 April 2013
Signed Thomas Hammarberg”
F. Dossier (Memorandum) of 30 March 2012 provided by
Mr Hammarberg to the Romanian Prosecutor General (extracts)
334. An introductory part of the dossier (attached as Attachment C to the
above-mentioned affidavit), read, in so far as relevant, as follows:
“Introduction
1. My Office has prepared the present submission pursuant to some discussions
with the Permanent Representative of Romania to the Council of Europe, which
followed my publication of two Human Rights Comments in September 2011. I have
assumed that it is in our common interest to establish the truth and secure
accountability in respect of detention and interrogation activities reported to have
been earned out at a secret prison facility (‘Black Site’) operated by the US Central
Intelligence Agency (‘CIA’) on the territory of Romania in the context of the ‘war on
terror’.
2. Within the terms of my mandate, I have attempted to assemble as much credible
factual material as possible regarding the operations of the CIA Black Site in Romania
Towards this end I have drawn upon original investigation and analysis undertaken by
my Office during the six years of my mandate as Commissioner, as well as the work
and findings of other Council of Europe bodies in the same period, notably the
inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick
Marty, as reflected in his reports published in 2006 and 2007.
3. The sources for our submission include official US Government documents
describing CIA operations (many of which have been declassified as a result of
litigation under the Freedom of Information Act, or emerged from other court
proceedings), flight records and aeronautical data amassed from diverse entities across
the global aviation sector (and especially in the countries that hosted CIA operations),
and excerpts of interviews with former CIA detainees earned out by delegates of the
International Committee of the Red Cross (ICRC). Reports produced by investigative
journalists, notably as a result of a collaboration between the Associated Press and
German public television ARD Panorama, have also enabled specific elements of the
CIA operations in Romania to be verified and corroborated. ...
4. It is my view that sufficient evidence has now been amassed to allow us to
consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm
that serious human rights abuses took place there. Nonetheless, it remains the role and
responsibility of the Romanian authorities to establish the full circumstances of what
happened, including the extent and nature of any crimes that occurred. In order to
fulfil Romania’s positive obligations under the European Convention on Human
Rights, I believe it is now imperative that the Romanian authorities conduct a
AL NASHIRI v. ROMANIA JUDGMENT
143
prosecutorial investigation capable of leading to the identification and punishment of
those responsible, whoever they might be. ...”
335. The dossier described “The Anatomy of detention operations at the
CIA Black Site in Romania”.
The section relating the opening of the “black site” read, in so far as
relevant as follows:
“6. The opening of the CIA Base codenamed ‘Bright Light’, and the start of
detention operations at the CIA Black Site in Romania, was marked by a flight into
Bucharest Băneasa Airport (LRBS) on the night of 22 September 2003. Flight records
show that the Boeing 737 aircraft, registered with the FAA as N313P, arrived at
Băneasa at 21h31m GMT that night in the course of a four-day flight ‘circuit’, during
which it landed in and departed from a total of six different foreign territories, as well
as the US naval installation at Guantánamo Bay, Cuba. ...
9. In particular, though, the highlighted route flown between Szymany, Poland - the
airfield closest to the location of the CIA’s first European Black Site - and Bucharest,
Romania was significant because it was the first time in the history of the CIA
Rendition and Detention Program that the CIA engaged in its trademark practice of
‘dummy’ flight planning for its routes into and out of Romania. ...”
336. It further referred to false flight plans made for N313P for the
above circuit including Băneasa Airport on 23 September 2003:
“11. False flight plans in respect of Romania - customarily filed on behalf of the
CIA by its well-known aviation services contractor Jeppesen International Trip
Planning (‘Jeppesen’) – consistently featured an airport of departure (ADEP) and / or
an airport of destination (ADES) that the aircraft never actually intended to visit. The
CIA’s deliberate trend, which it began on 22 September 2003 and continued for more
than two years, was to avoid listing Bucharest (LRBS) as its express destination. If
Bucharest was mentioned at all in these flight plans, then it was usually only as an
alternate, or back-up airport, on a route involving Constanţa (LRCK) or Timișoara
(LRTR), for example. ...
13. It is noteworthy that in the penultimate line of this plan (highlighted yellow),
Jeppesen invoked a very important ‘special status’, or STS, designation that is
supposed to be used only in strictly limited circumstances: ‘STS/STATE’. In filing
this designation, Jeppesen claimed an official status for N313P as a diplomatic or state
aircraft, only one notch below the aircraft that carry Heads of State [STS/HEAD] The
flight plan therefore confirms that the mission of N313P, as well as its cover-up, was
known about and authorized in the highest echelons of the US Government, as well as
in the authorities of the receiving state, Romania. N313P shares this STS designation
with the majority of CIA detainee transfer flights into Europe we have analysed.”
337. The dossier also listed further detainee renditions into the CIA
”black site” in Romania, with sources of evidence being explained as
follows:
“Based on having unpicked the practice of ‘dummy’ flight planning and, in respect
of several key landings of CIA rendition aircraft, having obtained original
documentary records from agencies inside Romania, we have been able to compile a
substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all
of which bore the character of ‘detainee drop-offs’. Beginning with the landing of
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AL NASHIRI v. ROMANIA JUDGMENT
N313P that marked the opening of the CIA Black Site in Romania, the most
significant of these flights can be summarised as follows. ...”
The list of rendition flights included:
N313P
“i. landing at 21h31m GMT on the night of 22 September 2003, assessed to
have been bringing in at least two CIA detainees from Szymany. POLAND, ‘dummy’
flight plans filed featuring Constanţa (LRCK);
N313P
ii. landing at 23h51m GMT on the night of 25 January 2004 (assessed to
have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘dummy’ flight
plans filed featuring Timisoara (LRTR);
N85VM
iii. landing at 23h14m GMT on the night of 26 January 2004 (assessed to
have been bringing in CIA detainee(s) from Amman. JORDAN, ‘dummy’ flight plans
filed featuring Constanţa (LRCK);
N85VM
iv. landing at 21h47m GMT on the night of 12 April 2004 (assessed to
have been bringing in CIA detainee(s) from US Naval Base, GUANTÁNAMO BAY,
via a technical stopover in Tenerife, ‘dummy’ flight plans filed featuring Constanţa
(LRCK);
N288KA
v. landing at 21h24m GMT on the night of 31 July 2004 (assessed to have
been bringing in CIA detainee(s) from Kabul, AFGHANISTAN and from Amman,
JORDAN, ‘dummy’ flight plans filed featuring an unspecified destination;
N787WH
vi. landing at 09h45m GMT on 18 February 2005 (assessed to have been
bringing in CIA detainee(s) from Rabat, MOROCCO, ‘dummy’ flight plans filed
featuring Constanţa (LRCK);
N308AB
vii. landing at circa 21h00 GMT on 26 May 2005 (assessed to have been
bringing in CIA detainee(s) from Amman, JORDAN, ‘dummy flight plans filed
featuring an unspecified destination);
N860JB
viii. landing at 19h34m GMT on 21 August 2005 (assessed to have been
bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘dummy’ flight plans filed
featuring Constanţa (LRCK).”
338. The life-cycle of the CIA ”black site” in Romania was described as
follows:
“15. Our investigations into the CIA’s Black Sites in Europe have enabled us to
understand the underlying transience of the CIA’s individual detention facilities.
Simply put, we have found that each CIA Black Site had a unique individual life-
cycle.
16. The timing of operations on each host territory of a CIA Black Site was highly
sensitive and sometimes resulted from abrupt changes in conditions. Factors
influencing not only the choice of location for a Black Site, but also the length of its
life-cycle, included the CIA’s relationships with foreign liaison services/operational
partners in the respective host territories, and the CIA’s determination to evade
detection or exposure of any aspect of its RDI Program.
17. Such was the cyclical nature of the CIA’s Program, the mantle of most
significant venue for detention and interrogation operations shifted from one host
territory to another in periods measured by months. Thailand hosted ‘Black Site No 1’
near Bangkok and was the sole ‘Customized HVD Facility’ for just under nine months
(27 March to 4 December 2002). Poland, host of ‘Black Site No 2’ at Stare Kiejkuty,
AL NASHIRI v. ROMANIA JUDGMENT
145
followed immediately and remained in operation for just under ten months
(5 December 2002 until 22 September 2003).
18. Such was the expansion of the CIA’s HVD Program in the course of 2003, it is
not possible to say thereafter that one single site remained predominant for the
entirety of its existence However, for a period of at least one year, beginning with its
opening on 22 September 2003, the mantle of most significant site passed to Romania,
which hosted ‘Black Site No. 3’ in Bucharest.
19. Information otherwise gathered regarding the life-cycle of the CIA Black Site in
Romania includes the following:
The CoE Marty Inquiry found that ‘Romania was developed into a site to which
more detainees were transferred only as the HVD Program expanded’, and that ‘the
Romanian Black Site was incorporated into the Program in 2003, attained its greatest
significance in 2004. and operated [at least] until the second half of 2005.’
The Associated Press has reported that ‘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.
All the prisons were closed by May 2006, and the CIA’s detention and interrogation
program ended m 2009’; and
ABC News reported on December 5, 2005 that ‘two CIA secret prisons operat[ed]
in Eastern Europe until [November 2005]’ - presumed to have been in Romania and
one other country - and that ‘the United States scrambled to get all the [detained al-
Qaeda] suspects off European soil before Secretary of State Condoleezza Rice arrived
there today.”
339. The description of the operating conditions for the CIA “black site”
in Romania and of its physical location, capacity and layout read, in so far
as relevant, as follows:
“20. As a result of the aforementioned AP/ARD collaboration, the exact
whereabouts, capacity and layout of the CIA Black Site in Romania have been
established for the first time. The prison facility was operated in an underground
basement that forms part of the building complex housing the National Registry
Office for Classified Information (ORNISS), at No 4 Strada Mures, Sector 1,
Bucharest.
21. It is significant that the facility was found to have been located in the northern
part of downtown Bucharest, as this accords with the CIA methodology of
maintaining only a short drive between the rendition airfield, Băneasa Airport, and the
detention site.”
340. Operating agreements and authorisations on the part of the
Romanian authorities were related, in so far as relevant, as follows:
“23. Recent reporting appears to offer more information than was previously known
about the proprietary character of the building(s) in which the CIA Black Site in
Romania was housed, and the means by which the premises was appropriated and
renovated. There is a precedent in this regard the equivalent CIA Black Site in Poland
was a constituent part of an existing state facility that was ‘loaned’ to the CIA –
situated inside the Polish military intelligence base at Stare Kiejkuty.
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AL NASHIRI v. ROMANIA JUDGMENT
24. In the case of Romania, the creation and operation of the National Registry
Office for Classified information (ORNISS), as a result of Romanian Government
Emergency Ordinance No 153 of 7 November 2002, coincided with an important
development in the operations of the CIA Rendition, Detention and Interrogation
Program, as follows:
• The New York Times has reported that Kyle ‘Dusty’ Foggo, the then serving Chief
of CIA Logistics in Europe (stationed in Frankfurt), agreed in March 2003 to an
assignment to ‘oversee construction’ of CIA Black Sites in Romania and two other
locations.
25. It is clear that there exists a set of official documents according to which the
basis for the CIA’s operation of a secret detention facility on Romanian territory was
agreed, and its operational permissions and protections were authorised. The Council
of Europe’s understanding on this issue was contained in the Marty Report of 2007 in
the following terms:
• ‘that the most important documents at issue have the character of ‘bilaterals’,
derived from the application of the wider NATO framework to US-Romanian
counterterrorism cooperation m the course of the ‘war on terror’.”
341. Section relating to treatment of detainees held in Romania reads, in
so far as relevant:
“33. Notwithstanding the individual interrogation regimes designed specifically for
individual detainees, the CIA reported to the US Department of Justice in 2005 that a
set of six Standard Conditions of CIA Detention were being applied routinely to
detainees held in the CIA’s detention facilities – including at the CIA Black Site in
Romania. These conditions included forms of treatment that might in themselves have
ramifications for compliance with the ECHR, including the use of blindfolding or
hooding, forced shaving of hair, indefinite periods of incommunicado solitary
confinement, continuous white noise, continuous illumination using powerful light
bulbs, and continuous use of leg shackles (in some instances for 24 hours a day).”
342. According to the dossier HVDs were brought to Romania either to
be interrogated using EITs or after a prior interrogation at other “black
sites”. The first category of the HVDs included Janat Gul and Mustafah
Faraj Al-Azibi (Abu Faraj Al-Libi). The second included Khalid Sheikh
Mohammed, Walid Bin Attash (aka “Khallad”), Ramzi Binalshibh and Abd
Al Rahim Al-Nashiri. It was added that the list of detainees included in the
dossier was not exhaustive and that, according to some reports, there had
been between two and four further detainees held in Romania at various
junctures between 2003 and 2006. The section concerning the applicant read
as follows:
Abd al-Rahim Al-Nashiri
“
•Arrested: October 2002 Dubai, UAE
•Previously held: Dubai, Afghanistan, Thailand, Poland, Morocco, Guantánamo Bay
•Subjected in Poland to several ‘unauthorised techniques’, including incidents
described by the CIA Inspector General as the ‘most significant abuses’ in the CIA
Program
AL NASHIRI v. ROMANIA JUDGMENT
147
Transferred to CIA Black Site in ROMANIA 12 April 2004 N85VM flight
Guantánamo Bay (MUGM) – Bucharest (LRBS)
•Debriefing subsided considerably beyond February 2004 and is not known to have
been subjected to EITs in Romania.”
G. Mr Hammarberg
the Court and the parties
343. The Court decided to hear evidence from Mr Hammarberg at the
fact-finding hearing. However, since Mr Hammarberg was not available on
the hearing date, the Court and the parties addressed questions to him in
writing. Mr Hammarberg’s written replies were received at the Court’s
Registry on 9 June 2016.
1. The Court’s questions
344. The Court’s questions started form the following introduction:
“In your
(a) ’Human Rights Comments - Europeans must account for their complicity in
CIA secret detention and torture’, published on 5 September 2011;
(b) Memorandum, entitled ‘Advancing accountability in respect of the CIA Black
Site in Romania’ (‘the Memorandum’) of 30 March 2012; and
(c) affidavit (‘the Affidavit’) of 17 April 2013, produced by Mr Al Nashiri,
you refer, among other things, to Romania’s complicity in CIA secret detention, the
operation of the CIA detention facility in Bucharest from 22 September 2003 to an
unspecified date in the second half of 2005, presumably November 2005 and
Mr Al Nashiri’s rendition to Romania on 12 April 2004.”
Question 1:
“On the basis of evidence known to you and, in particular, collected in 2006-2012,
i.e. during your term as the Council of Europe’s Commissioner for Human Rights, can
it be said that at the material time (22 September 2003- unspecified date in the second
half of 2005, presumably November 2005) Romania knew, or ought to have known of
the operation of the CIA rendition programme on its territory and was aware of the
existence of the CIA detention facility in Bucharest, designed for interrogation of
terrorist-suspects in CIA custody?”
Answer:
“As I stated in my Memorandum of 30 March 2012, it was my view in 2012 that
sufficient evidence had been amassed to allow me to consider the existence of a CIA
Black Site in Romania as a proven fact, and to affirm that serious human rights abuses
took place there (§ 4 of the Memorandum). These operations were, of course,
conducted under extreme secrecy. In the case of Poland and Lithuania, it has been
established that only a very few high level decision makers were at all informed and
had given their confidential consent to the establishment of the interrogation centres.
The operation of the centres was totally in hands of CIA officials. It is likely that the
situation in Romania was similar.
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AL NASHIRI v. ROMANIA JUDGMENT
The point I sought to make, at the time of transmitting the Memorandum to the
Romanian Prosecutor, was that there was enough prima facie evidence to make it
necessary to start a thorough investigation. My aim was to demonstrate the
compelling need for a judicial investigation and to assist such procedure through
sharing our information.”
345. Question 2:
“In the Memorandum you stated that Mr Al Nashiri was transferred to the ‘black
site’ in Romania on 12 April 2004 on the CIA rendition plane N85VM.
On what kind of evidence was that finding based and how was it possible to
establish that this particular individual was transferred to Romania on this specific
date?”
Answer:
“The assertion that Mr Al Nashiri was transferred to the ‘Black Site’ in Romania on
12 April 2004 on the CIA rendition plane N85VM was made as a result of original
investigation work and analysis which was carried out by Mr. J.G.S, an adviser in my
Office from 2010 – 2012 (see the case of Al-Nashiri v Poland, application no.
28761/11, 24 July, § 324). The assertion was based on a number of different sources
which were cross-referenced and not one piece of evidence in isolation. These sources
included: official US Government documents describing CIA operations; flight
records and aeronautical data amassed from diverse entities across the global aviation
sector (current and former employees of national civil aviation authorities, airports,
pilots, private charter companies, US government contractors and sub-contractors, and
international organisations such as Eurocontrol); and excerpts of interviews with
former CIA detainees carried out by delegates of the International Committee of the
Red Cross. Media reports produced by investigative journalists, in particular by the
Associated Press and German public television, ARD Panorama, have also enabled
specific elements of the CIA’s operations in Romania to be verified and corroborated.
The work and findings of other Council of Europe bodies in the same period, notably
the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator
Dick Marty, as reflected in his reports published in 2006 and 2007 also informed my
work, as well as original documentary records from agencies inside Romania which
assisted enabled me to compile a substantial list of disguised rendition flights into
Bucharest.
From the combination of these sources, we managed to draw the conclusion that the
CIA opened an interrogation centre in Bucharest in September 2003 and that
Mr. Al Nashiri was transferred there on 12 April 2004.”
346. Question 3:
“Why was no date, even approximate, of Mr Al Nashiri’s transfer from Romania,
indicated in the Memorandum?”
Answer:
“The reason why no date, even approximate of Mr Al Nashiri’s transfer from
Romania was indicated in the Memorandum was that our research did not manage to
establish the precise dates for the closure of the centre in Bucharest nor for
Mr. Al Nashiri’s departure from there.”
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347. Question 4:
“ In the Affidavit (§§ 4-5) you mentioned that – on several occasions but to no avail
– you had raised with the Romanian diplomats the issue of the CIA black sites in
Romania and you had informed them that materials in your possession had showed
that the CIA had kept suspects detained in a location in Bucharest for the purpose of
interrogation.
Could you specify, at least approximate, dates on which you raised that issue before
delivering your dossier to the Romanian diplomatic mission and what was the
authorities’ response?”
Answer:
“I raised the issues reflected in the Memorandum in meetings with the Romanian
Ambassador (Permanent Representative) to the Council of Europe on 5 September
2011, 30 January 2012 and 29 March 2012. These were confidential meetings held
between myself as Commissioner for Human Rights and the Ambassador, as
representative of the Romanian authorities. I do not feel in a position to disclose the
precise contents of those discussions, save to underline that during the meeting on
29 March 2012, I handed over my Memorandum, which was addressed to the
Prosecutor General in Bucharest. The Memorandum was then published a number of
months later on 18 December 2012.”
348. Question 5:
“In the Affidavit (§§ 7-9) you mentioned that you had received no ‘formal response’
to the dossier that you had prepared for the Romanian Prosecutor General.
Did you receive any other response, even informal? Did you have an opportunity to
discuss the question of instituting an investigation with the Romanian authorities at
any further stage? If so, how did the authorities react to the information of the CIA
‘black sites’ on their territory which they had received from you?”
Answer:
“I received no response from the Romanian authorities, not even an informal one.”
2. The Romanian Government’s questions
349. Question 1:
“Having regard to the fact that the change of flight plans after being submitted
represents a unilateral action of the flight operator and to the fact that the route
changes are reflected in the documents issued by the Romanian authorities, which is
the evidence that led to the conclusion that a simple change of flight plans (allowed by
the relevant domestic and international regulations such as the IFPS Users Manual)
represented a cover-up with the complicity of the Romanian authorities?”
Question 2:
“Having regard to the IFPS Users Manual provisions concerning the STS/STATE
indicator, which were the domestic or international legislation or the relevant elements
of fact that led to the conclusion that the flights with the STS/STATE indicator
analysed in the Memorandum that landed on Romanian territory benefited from
certain privileges and which were these privileges?”
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Answers to questions 1 and 2:
“The changing of flight routes was systematic with the obvious purpose of
protecting the secrecy of the operations. In our investigation work we were able to
unpick the practice of such ‘dummy’ flight planning. In respect of several key
landings of the CIA rendition aircraft we did obtain original documentary records
from agencies inside Romania. We were also able to compile a substantial, albeit non-
exhaustive list of disguised rendition flights into Bucharest, all of which bore the
character of ‘detainee drop-offs’.
Though the operations were conducted under extreme secrecy, it is obvious that the
CIA plane could not land with its cargo and depart without agreement from high-level
Romanian decision makers. This is further underlined by the fact that the flights had
been given the very important ‘special status’ - STS/STATE - a designation that is
supposed to be used only in strictly limited circumstances: in attributing this
designation, the CIA company claimed an official status for the plane, N313P, as a
diplomatic or state aircraft, only one notch below the aircraft that carries Heads of
State [STS/HEAD].”
350. Question 3:
“Having regard to the fact that the Memorandum quotes the 2007 Marty report as a
reliable source for many of its conclusions, which were the reasons that determined
the author to dismiss Senator’s Marty supposition that a secret detention site was
located in the area of the Mihail Kogălniceanu Airport (§§ 222-226 of the 2007 Marty
Report)? What led the author of the 2012 Memorandum to conclude that the
information provided by Senator’s Marty sources on this subject is less believable
than the information provided on other aspects cited in the Memorandum?”
Question 4:
“Having regard to the fact that certain reports put forward several dates as the
possible date of entry of the applicant on Romanian territory, which are the elements
that justify the Memorandum’s conclusion that the applicant entered Romania on the
12th of April 2004?”
Answers to questions 3 and 4:
“The reports from 2006 and 2007 by Senator Dick Marty to the Parliamentary
Assembly of the Council of Europe provided important background information to the
Office of Commissioner for Human Rights as well as non-governmental human rights
organizations and serious investigative media outfits to put together further
information on this issue.
However, the Commissioner’s Office used multiple sources in its research. I refer
back to my answer to Question 2 in response to the Court’s questions.”
3. The applicant’s questions
351. Question 1:
“Would Mr. Hammarberg like to supply further information relating to Romania’s
participation in the CIA’s secret detention and extraordinary rendition programme,
including its hosting of a secret CIA prison where the applicant was secretly
detained?”
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Answer:
“One aspect which should be mentioned is that the CIA rendition and interrogation
programme was conducted behind a wall of extreme secrecy. Even after the closure of
the programme it has been very difficult to establish facts about these activities. It is
no secret that US authorities have taken extraordinary steps to prevent basic facts to
be known, even in relation to judicial actors in other countries.”
352. Question 2:
“Given that the European Court of Human Rights has now made findings of fact that
multiple European countries participated in a secret CIA rendition programme, does
that have an impact on his assessment of the evidence and his conclusion that
Romania was also a participant in that programme?”
Answer:
“2. It is true that it is now established that multiple European countries participated
in the secret CIA rendition program. Knowledge about the political relationship at the
time between Washington and Bucharest may make it seem more likely that Romania
was one of these countries. However, that in itself does not prove that that was the
case. It does, however, underline the importance of an effective, independent
investigation of evidence about such Romanian participation.”
353. Question 3:
“Would Mr. Hammarberg like to supply further information relating to Romania’s
failure to conduct an effective investigation into its role in the CIA’s secret detention
and extraordinary rendition programme?”
Answer:
“The human rights violations committed during the CIA rendition and interrogation
activities at the time included illegal, secret detention and torture. Data presented by
various sources, some of them mentioned in my Memorandum, indicate that an
interrogation centre was indeed established in Bucharest. An official policy of total
denial and non-response to the quest for a serious investigation appears contrary to the
very spirit of internationally agreed human rights. The implied message might be
understood as basic human rights – including the avoidance of impunity – is less
important that than good cooperation between security agencies.”
H. Senator Marty
354. The applicant produced an affidavit made by Senator Marty and
dated 24 April 2013. That document read as follows:
“Affidavit of Dr. Dick F. MARTY
1. I, Dick MARTY, served as a Senator in the Council of States of Switzerland for
16 years, from 1995 until 2011. For 14 of those years, I represented Switzerland as a
delegate to the Parliamentary Assembly of the Council of Europe (‘PACE’). I held
several leadership positions during my political career, including in Switzerland as
Chairman of the Senate Foreign Affairs Committee, and in Strasbourg as Chairman of
the PACE Committee on Legal Affairs & Human Rights and of the PACE Monitoring
Committee.
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2. Between 2005 and 2007 1 was the PACE Rapporteur on ‘Secret detentions and
illegal transfers of detainees involving Council of Europe member states’. In this
capacity, prepared two reports, both of which were adopted with resounding
majorities in PACE Plenary Sessions: ‘Alleged secret detentions and unlawful
interstate transfers of detainees involving Council of Europe member states’, dated
12 June 2006 (the ‘2006 PACE Report’); and ‘Secret detentions and illegal transfers
of detainees involving Council of Europe member states: second report’, dated 7 June
2007 (the ‘2007 PACE Report’).
These two reports focused on the secret detention and rendition operations carried
out by the United States Central Intelligence Agency (‘CIA’) in its ‘war on terror’ and
the extent to which European states were complicit in the resultant abuses of human
rights.
3. In compiling my 2006 and 2007 PACE Reports, 1 spent considerable time
investigating the existence of a CIA secret prison, or ‘Black Site’, on the territory of
Romania. My findings in each Report were carefully considered and contained the
factual elements that were supported by the information available to mc at the relevant
time.
4. In my 2006 PACE Report, I included Romania (represented, notably, by a
landing point at Băneasa Airport in Bucharest) as a key component of the ‘global
spider’s web’ of secret detentions and renditions, having found it to be ‘thus far the
only Council of Europe member State to be located on one of the rendition circuits...
and which bears all the characteristics of a detainee transferor drop-off point’.
5. In my 2007 PACE Report, after several further months of inquiry including
fieldwork in the countries concerned, I was able to present much more detailed and
categorical findings regarding the operations of the CIA’s High-Value Detainee
(‘HVD’) Programme in Europe. I concluded that there was, by that stage, ‘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’.
6. In a section of my 2007 PACE Report entitled ‘Secret detention operations in
Romania’, I described at some length the means by which Romanian and American
officials at various levels had colluded on the operations of the CIA ‘Black Site’.
I also identified and named five senior office-holders in successive Romanian
Governments who ‘knew about, authorised and stand accountable for Romania’s role’
and in doing so had ‘short-circuited the classic mechanisms of democratic
accountability’.
7. By the end of my mandate as PACE Rapporteur on the subject, in 2007, my
convictions regarding Romania’s participation in the CIA’s HVD Programme were
unambiguous and unwavering. My key findings were stated in the strongest terms
possible, supported by the most comprehensive information available to me at the
time. Based on my 2007 Report, the PACE Committee on Legal Affairs & Human
Rights considered it ‘factually established’ that Romania was one of the European
countries that had hosted a CIA secret prison. The caveat I had previously inserted in
my 2006 PACE Report, when I had surmised that there was ‘[a]t this stage [in June
2006] ... no formal evidence, was rendered redundant by June 2007’. There is no such
caveat in my 2007 PACE Report.
8. Up to the present day, I stand by every one of the factual findings I delivered in
my 2006 and 2007 PACE Reports. Indeed my certitude that a CIA ‘Black Site’
existed in Romania has only increased since that time. Subsequent international
investigations – notably by investigative journalists – into various aspects of the
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CIA’s HVD Programme have independently vindicated the conclusions of my PACE
Reports, and / or have developed certain lines of inquiry regarding Romania even
further than 1 was able to. My belief in the ‘dynamics of truth’ has remained firm.
9. I am duly informed about the Application in the case of Al-Nashiri v. Romania,
filed on 12 August 2012 and currently pending before this Court. I am familiar with
the applicant’s claims and with much of the evidentiary material on which he relies.
10. In addition I have read carefully the Romanian Government’s Written
Observations (‘Romanian Government Response’, or ‘RGR’) in response to the
Application, filed on 11 December 2012 and made available to me by the Applicant’s
legal representatives.
11. I note that the Romanian Government has chosen to attack the veracity,
credibility and consistency of my PACE Reports at numerous points in its Written
Observations. This strategy is disappointing, albeit unsurprising to me. In fact, it is
entirely typical of the ‘responsive and defensive posturing... stop[ping] short of
genuine inquisitiveness’, which I highlighted in my 2007 PACE Report as one of my
‘three principal concerns’ with the approach of the Romanian authorities towards the
repeated allegations of secret detentions in Romania, and towards my inquiry in
particular.
12. I regret that the Romanian authorities continue to prefer attacking me than
addressing their own wilful failure to carry out a full and thorough judicial
investigation. In any case, the Romanian authorities’ attacks on my PACE Reports are
misguided, as I shall demonstrate point–by–point in the paragraphs that follow.
13. First, the Romanian Government repeatedly asserts, wrongly, that I based my
PACE Reports on ‘newspaper articles’ or on ‘feeble indications’. On the contrary, my
2006 and 2007 PACE Reports were the products of one of the most intensive and far-
reaching inquiries I have ever led - including in my 20-year career as a state
prosecutor.
14. My inquiry team gathered and analysed information in a manner more
analogous to law enforcement investigation or, as I wrote in my 2007 PACE Report,
‘real “intelligence” work’ – notwithstanding our modest means. The information we
compiled was, with hindsight, more voluminous and more compelling in character
than even that which serious Prosecutors, at national level, had been able to assemble.
It bears mentioning that several such Prosecutors, in different countries, have gone on
to regard our information as evidence, and to tender it as such in judicial proceedings.
15. A key strand of our information came from testimonial sources whom we
identified, screened, located, approached and built relationships with during our in-
country missions across Europe and in the United States. We made field visits to
capital cities, to the vicinities of suspected detention sites and to repositories of
official information; we met representatives of both political and intelligence
structures and developed them as our sources, often working patiently over a period of
months to hold multiple conversations of incrementally increasing value. We
ultimately spoke with, and in many cases interviewed, ‘over 30 one-time members
(serving, retired or having carried out contract work) of intelligence services’, the
majority of whom were from the US, Poland or Romania.
16. With regard to the basis for my findings on Romania, I ensured in my 2007
PACE Report that I was as specific and explicit as possible about the nature of my
sources: ‘During several months of investigations, our team has held discussions with
numerous Romanian sources, including civilian and military intelligence operatives,
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representatives of state and municipal authorities, and high-ranking officials who hold
first-hand knowledge of CIA operations on the territory of Romania.
17. I hereby affirm that our sources in Romania included persons who knew about
the means by which the CIA HVD Programme was authorised and executed in their
country precisely because they had a ‘need-to-know’, in accordance with the CIA’s
strict secrecy and compartmentalisation policies. What the Romanian Government
seeks to dismiss as a ‘contradiction’ is actually an inconvenient truth: 1 received
confirmation of Romania’s role from the same persons who belonged to the ‘very
small circle of trust’ inside the responsible Romanian authorities.
18. I further note that the Romanian Government has attempted to impugn my
integrity by characterising my methodology as subjective and even ‘pretended’, and
by attacking my conclusions, variously, as ‘erroneous’’, ‘unsubstantiated’ and
containing ‘a lot of contradictions’. In my defence, I need only restate my professional
credentials and reiterate that the methodology 1 employed was as rigorous as any I am
aware of under an inquiry mechanism of this nature. In the introduction to my 2007
PACE Report, I explained in detail my policies on corroboration, as well as the
strictly limited basis on which I was able to guarantee confidentiality to certain
sources. I might only reflect, again with regret, that these parameters were ‘imposed
upon us because of the lack of collaboration from the states concerned’.
19. Finally the Romanian Government seeks to attribute to my PACE Reports
certain assertions on disputed points of fact that I never made. The first such instance
regards the physical location of the CIA ‘Black Site’ in Romania, for which the
Romanian Government states that ‘the alleged sources changed their assumptions
each time it was established that no secret detention facility ever existed in the
indicated place. For my part, I explained in 2007 that I was not prepared to pronounce
categorically on the precise location of the CIA ‘Black Site’ in Romania because I
believed that ‘to name a location explicitly would go beyond what it is possible to
confirm from the Romanian side’.
20. The second instance is where the Romanian Government states that ‘according
to the 2007 Marty’s Report, the applicant was delivered to detention in Romania on
22 September 2003, on board the aircraft N313P. This is plainly a misattribution; in
my 2007 PACE Report, I stated that I was unable to place any particular detainee onto
a given CIA rendition flight into Romania, on the basis that ‘[t]here presently exists
no truthful account of detainee transfer flights into Romania, and the reason for this
situation is that the Romanian authorities probably do not want the truth to come out.
21. Thus, notwithstanding the strength of the information on which I relied, I
maintain that in several areas of my Reports I understated my findings and – notably
with regard to which detainees were held in Romania between which dates, and on
which rendition flights they were transported – I stopped short of conclusions that
could have been even more grave for Romania in the context of the present
proceedings.
22. The reason for my restraint was my overriding concern for objectivity, which
meant that every item of information in my PACE Reports had to be verified,
validated and corroborated, not least in light of the potential legal ramifications. In
short I was guided, as I am today, by a deep-rooted personal commitment to the
values the Council of Europe has always worked to uphold.
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I declare that the information I provide herein is true to the best of my knowledge
and belief.
Signature: Dr Dick F. Marty
Date: 24 April 2013”
I. The 2015 LIBE Briefing
355. The 2015 LIBE Briefing of 15 September 2015, prepared by
Mr Crofton Black was produced by the Bureau of Investigative Journalism
and the Rendition Project (“the TBIJ/TRP”) for the EU Parliament LIBE
Committee Delegation to Romania (see paragraph 288 above), in
connection with their continuing inquiry into the alleged transportation and
illegal detention of prisoners in Europe committed by the CIA (see also
paragraphs 268-290 above).
The document described correlations between the 2014 US Senate
Committee Report and other public data sources and consisted of two parts:
a summary of flights with links to the rendition programme through
Romania and a summary of data in that report which could be related to
Romania. It stated that the 2014 US Senate Committee Report confirmed
previous accounts of the CIA secret detention in Romania and the existing
public source data on transfer dates of prisoners into and out of Romania,
named some HVDs held in Romania and described torture inflicted on some
prisoners held in Romania. In its appendices it contained recorded flight
plan data for each trip of rendition flights concerned and main contracting
documents relating to rendition missions executed by air companies for the
CIA.
356. The 2015 LIBE Briefing stated that it was established beyond
reasonable doubt that:
(a) a facility in Romania had been used by the CIA to hold prisoners;
(b) prisoners had been first transferred to this facility in September
2003;
(c) prisoners had last been transferred out of this facility in November
2005;
(d) other transfers of CIA prisoners between Romania and other
countries had occurred between these dates;
(e) the 2014 US Senate Committee Report named five prisoners held
in Romania. Several others had been named in other reporting.
(f) some transfers were carried out by planes operated by Aero
Contractors/Stevens Express, two shell companies with strong links to
the rendition programme (see also paragraphs 69-70 above);
(g) other transfers were carried out by a network of aviation
companies working alongside prime contractor Computer Sciences
Corporation, operating through a linked group of contracts;
(h) while in Romania, some prisoners had been tortured.
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357. As regards the flights operated by Aero Contractors/Stevens
Express, according to the 2015 LIBE Briefing two aircraft registered as
N379P and N313P were active in the rendition programme between 2001
and 2004. Investigations by journalists, lawyers, NGOs and international
bodies linked them to at least fifteen rendition missions. Three missions by
these two aircraft related to prisoner transfers through Romania. The flights
took place, respectively, on 22-23 September 2003, 25-26 October 2003 and
25 January 2004.
The relevant passages from the 2015 LIBE Briefing read:
“On 22-23 September 2003, N313P flew from Afghanistan to Poland, Romania,
Morocco and Guantánamo Bay. Authoritative sources summarized in the European
Court of Human Rights’ judgement in Husayn (Abu Zubaydah) v. Poland show that
this was a rendition mission. Media reporting has suggested that, at various points,
this mission transported Mustafa al-Hawsawi, Walid bin Attash, Abu Zubaydah, Abd
al-Rahim al-Nashiri, Ramzi bin al-Shibh and Khaled Sheikh Mohamed. Research by
TBIJ/TRP indicates that it also carried Samr al-Barq and possibly others. Of these,
research indicates that Walid bin Attash, Khaled Sheikh Mohamed and Samr al-Barq
were moved from Poland to Romania on this date.
On 25-26 October 2003, N379P flew from Romania to Jordan, Afghanistan and
Iraq. As part of this mission, Mohamed Bashmilah was transferred from Jordan to
Afghanistan. Research by TBIJ/TRP indicates that this flight also coincides with the
transfer from Romania to Jordan of Samr al-Barq, and that after Bashmilah was
brought into Afghanistan the plane took Hiwa Abdul Rahman Rashul and Aso
Hawleri to Iraq.
On 25 January 2004, N313P flew from Afghanistan to Romania in the course of a
long mission that also took it to Morocco, Algeria, Macedonia and Iraq. Research by
TBIJ/TRP indicates that Hassan Ghul was transferred from Afghanistan to Romania
on this flight. NGO reports and legal filings show that as part of the same mission
Binyam Mohamed was transferred from Morocco to Kabul (22 January), Khaled el-
Masri from Skopje to Kabul (24 January) and Khaled al-Maqtari from Baghdad to
Kabul (24 January). Research by TBIJ/TRP also shows that this mission coincided
with the rendition of Jamal Eldin Boudraa from Afghanistan to Algeria (22 January).”
358. As regards flights operated by Computer Sciences Corporation,
according to the 2015 LIBE Briefing between 2002 and 2006 they carried
out rendition flights via an interlinked series of contracts. That network was
revealed in the Richmor Aviation v. Sportsflight Air case, during which both
parties discussed, in written pleadings and sworn testimony, the use of
flights operated under this group of contracts to transport prisoners (see also
paragraphs 67-70 above).
Research by TBIJ/TRP identified twelve key missions carried out in
2004 and 2005 by planes connected to this contracting network, linking
Romania to other CIA prison host countries and/or known or suspected
prisoner transfers. In the light of that research, contractual documentation
showed decisively that most of these twelve missions took place under
Computer Sciences Corporation’s renditions contract. The list of the trips,
in so far as relevant, read as follows:
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“[D] Between 25 and 28 January 2004, N85VM flew from Saudi Arabia to Jordan
and on to Romania. Research by TBIJ/TRP shows that this mission coincides closely
to the entry into the detention programme of Muhammad Qurban Sayyid Ibrahim, and
more approximately to that of Saud Memon.
[E] On 12-13 April 2004, N85VM flew from Guantánamo Bay to Romania and
Morocco.
[F] On 29 July-1 August 2004, N288KA flew from Afghanistan to Jordan and
Romania. Research by TBIJ/TRP indicates that Janat Gul was transferred on this
flight.
[G] On 24 August 2004, N308AB flew from Romania to Morocco. After pausing in
Dubai it then went from Afghanistan to Algeria on 26 August. In the second stage of
the mission it transferred prisoner Laid Saidi to Algeria. No clear evidence exists as to
who might have been transferred from Romania to Morocco at this time, although
research by TBIJ/TRP indicates that this flight might coincide with the removal of
Sayed Habib from CIA detention.
[H] On 1 October 2004, N227SV flew from Morocco to Jordan and Romania.
[I] On 18-20 October 2004, N789DK flew from Romania to Jordan and
Afghanistan.
[J] On 18 February 2005, N787WH flew from Morocco to Romania and Lithuania.
This coincided with another mission from Morocco to Jordan and Lithuania by
N724CL. Lawyers for Abu Zubaydah have stated in his application to the European
Court of Human Rights that he was transported on one of these two planes from
Morocco to Lithuania.
[K] On 26 May 2005 two planes, N450DR and N308AB, carried out a joint mission
between a) Afghanistan and Jordan and b) Tunisia, Jordan and Romania. Research by
TBIJ/TRP indicates that these planes were used to transport Abu Faraj al-Libi and
Abu Munthiral-Maghrebi from Afghanistan and Tunisia, respectively, to Romania.
[L] On 27 July 2005, N308AB flew from Romania to Egypt.
[M] On 21 August 2005, N860JB flew from Afghanistan to Romania.
[N] On 5-6 October 2005 two planes, N308AB and N787VWH, flew from
a) Romania to Albania and b) Albania to Lithuania. Research by TBIJ/TRP indicates
that Khaled Sheikh Mohamed was transferred from Romania to Lithuania on these
planes.
[O] On 5-6 November 2005, two planes, NIHC and N248AB, flew from a) Romania
to Jordan and b) Jordan to Afghanistan.”
XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE
COURT
359. On 28 June 2016 the Court took evidence from Mr Fava, Senator
Marty, Mr J.G.S and Mr Black (see also paragraphs 12 and 18 above). The
extracts from their testimony as reproduced below have been taken from the
verbatim record of the fact-finding hearing. They are presented in the order
in which evidence was taken.
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A. Mr Fava
360. In 2006 and 2007 Mr Fava was the Rapporteur of the TDIP in the
framework of the inquiry initiated by the European Parliament into the
allegations concerning the existence of CIA secret detention facilities in
Europe. In this connection, he prepared the Report of the TDIP, the
so-called “Fava Report”, on whose basis 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”) on 14 February 2007 (see paragraphs 276-278 below).
On 2 December 2013 Mr Fava testified before the Court at the
fact-finding hearing held in Al Nashiri v. Poland (cited above, §§ 305-310).
Mr Fava responded to a number of questions from the Court and the
parties.
361. He first replied to the judges’ questions concerning records of the
informal transatlantic meeting of the European Union and the North Atlantic
Treaty Organisation foreign ministers, including Condoleezza Rice, of
7 December 2005, referred to in paragraph “L” of the 2007 EP Resolution
(see paragraph 278 above) and “confirming that Member States had
knowledge of the programme of extraordinary rendition”. This document
was also described in Al Nashiri v. Poland as a “debriefing” and so referred
to in the judgment (ibid., § 306). In his reply he stated, among other things,
as follows.
“I do not remember the debriefing in detail, but I remember the subject matter of the
[transatlantic] meeting, namely, the need for the US Secretary of State, Condoleezza
Rice, to discuss with the ministers of all the EU Member States the issue of renditions,
and to somehow share with each government the choices made by the US
Government, which they had entrusted to their services, and in particular to the CIA,
for operational reasons.
I do not remember the statements in detail, but two things emerged from the
debriefing: firstly, at that stage, all the governments knew that this operational means
had been chosen by the CIA and that the extraordinary renditions were a tool in the
war against terrorism. The second point that emerged was a difference in views of the
various governments: those that felt that they should support the policy of the US
Government and the choice of extraordinary renditions, and then others that felt that
the matter of protecting human rights and providing all necessary legal guarantees to
terrorist suspects should continue to prevail, namely in accordance with the
international treaties.
We never had doubts, both for the precision of the notes, and because, in our
opinion, this affair had further confirmation in the course of our work. When, in the
framework of our activity, we went on mission to Washington, we met Ms Rice’s
legal advisor, Mr Bellinger, and Mr Bellinger said ‘we never violated the sovereignty
of any EU Member States or indeed any other associated States or any States in the
process of accession to the EU’, – because everything that was done, which President
Bush had somehow claimed in those months, in September 2006, and Bush’s
confirmation of the extraordinary renditions –, ‘everything that we did was done by
always informing and asking for the cooperation, and never trying to prevail over the
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will of the governments of the Member States’. So, the circumstance that there was a
broad knowledge about it, was confirmed by the way in which the US Government
told us ‘we had always acted in broad daylight, so to speak, not in relation to public
opinion, but in relation to the EU Member States’.”
362. The next question from the judges concerned paragraph 162 of the
Fava Report and the 2007 EP Resolution where “a serious concern” had
been expressed about 21 stopovers made by the CIA operated aircraft
shown to have been used by the CIA on other occasions for extraordinary
renditions of several specific persons” and, also, Working documents nos. 8
and 9 attached to the Fava Report (see paragraphs 271-277 and 279 above ),
listing flights from or to suspicious locations such as for example Kabul,
Guantánamo and Amman that stopped over in Romania in 2003-2005.
In that context, they asked Mr Fava “whether, having regard to the Fava
Report’s and the 2007 EP Resolution’s conclusions as to the member States’
knowledge of the rendition programme and evidence known to [him]
through the Fava Inquiry, [could] it be said that Romania knew, or ought to
have known, of the CIA rendition programme and its nature when it
allegedly operated on its territory, that is to say already in 2003-2003” and
“if so, was this knowledge such as to enable Romania to be aware of the
purposes of the 21 CIA aircraft stopovers on its territory?
Mr Fava responded as follows:
“In the course of our investigations, we did not reach certainty, but we felt, within
reasonable doubt, that the Romanian authorities were aware of the fact that there were
unauthorised detention centres and that five Romanian airports were used for the
transit of planes which were also transporting detainees. In particular, there was a
statement by Pascu, the former Minister of Defence, who said shortly before our
mission to Romania, that the Romanian authorities, as far as he knew in his position
of Minister of Defence, did not have access to certain sites, which were under the
control of the Army or the United States intelligence security forces in Romania.
Subsequently, when we asked him to account for and if it was possible to go into
more depth relating to that statement, the former Minister decided to partly deny it
and said he had been misunderstood. The impression we had was that he had actually
told the truth, also because Romania chose to undertake a rather superficial
investigation of the accusations received.
These were very detailed accusations because, before the European Parliament
Inquiry Committee had started its work, The Washington Post and ABC News had
produced quite detailed reports where they talked about the existence of detention
sites in certain European countries; in certain cases Poland and Romania were actually
named. Brian Ross, the ABC journalist, during an audition in Washington, confirmed
having received enormous pressure directly from the White House to remove the
names of the countries from their programme and that the TV programme should only
say ‘there are unauthorised detention sites’. But for national security reasons it was
requested not to cite explicitly Poland and Romania, and that was the choice made by
the TV network. In Romania, we realised that, when confronted with these facts, the
attitude of the Committee of Inquiry, set up by the Senate, was acting opaquely, not
least because only one chapter of all the conclusions, chapter 7, was actually made
public, where every question, every doubt received a negative answer. We thought it
was unusual, given the serious nature of the concerns, that the NGOs which had raised
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those complaints and the journalists who had written about it, had not been not heard.
The feeling we had, within a courtesy of institutional relation, was that the matter was
closed far too quickly, particularly given the evidence, as you recalled, of these
21 aircraft stopovers relating to all the CIA flights operated by front companies and
out of these 21 stopovers, out of these 21 flights, 18 are considered suspicious because
of either the destination or the country of origin.
In three cases, these planes were used for a number of extraordinary renditions.
Eight victims of extraordinary renditions, among those we ascertained, were
transported on planes which had landed in Romania in the course of their transport.
Some of these stopovers had no technical justification. The N313P, for example, a
Boeing 737, which was used to transport Binyam Mohamed, a British citizen, and
El-Masri, a German citizen, was collected in Skopje, and those flights could well have
flown the whole distance without needing to make a stopover in Bucharest. From
Kabul to Palma de Mallorca, the flight had full autonomy to reach its destination, the
stopover was not technically necessary. Likewise, the plane from Rabat to Poland did
not require a stopover in Bucharest. We did not get an answer to that, in that the data
we provided the authorities with, in order for them to give us a clarification whether
an evaluation on these flights had been made, received very vague replies.”
In that context, Mr Fava referred in particular to the plane N478GS (see
paragraphs 168 and 275 above):
“There was one specific case where the Romanian authorities had had to intervene.
It was a plane which had a technical problem on landing, N478GS, which landed on
the 6th of December [2004], coming from Bagram in Afghanistan, a city where it was
known that the Americans were detaining terrorist suspects. Initially they said they
knew nothing about that flight, only that there was just this incident, there was no
trace of a crew or of passengers. Only at a later stage, after we had insisted, they gave
us a list of passengers, seven US citizens, all with a service passport. One had a
Beretta gun and ammunitions. None of them was questioned about the purpose of the
trip from Bagram, they returned home on an Air France flight the following day, and
it seems that the plane was later transported by a Hercules to another European airport
to be repaired. And also on that point – on which many newspapers were raising
questions about a plane landing, carrying passengers, with a very special profile,
without there being any request for explanations from the Romanian authorities – that
point also remained unanswered in our opinion.”
363. In response to the judges’ question – referring, in particular, to
paragraph 164 of the 2007 EP Resolution stating that “[it] cannot exclude,
based on the statements of the Romanian authorities to the Temporary
Committee delegation to Romania, the possibility that US secret services
operated in Romania on a clandestine basis and that no definite evidence has
been provided to contradict any of the allegations concerning the running of
a secret detention facility on Romanian soil” (see also paragraph 280 above)
– whether the TDIP considered that in 2003-2005 a CIA detention facility
had or had not existed in Romania, Mr Fava stated:
“The conclusion we reached was a very strong suspicion that it existed, not the
certainty – there was no smoking gun – but a very strong suspicion concerning the
points I reported, because of what we were told by Pascu, the former Ministry of
Defence, because of the attitude, the rather superficial attitude of the Committee of
Inquiry. And also because of a number of considerations that we heard during the
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161
interviews: we heard many journalists, many non-governmental organisations. At that
time, it was impossible to have any certainty, except if there was an admission by the
Romanian Government. In that case however, the Romanian Government could not
prove the opposite, either because of the approximate work of its Committee of
Inquiry, or because of the acknowledgments that emerged between the lines by those
who basically said – also people that we interviewed at the airport - ‘we were not in a
position to know what was happening’.
An example I found in my notes is the testimony of the chief investigator for the
incidents on behalf of the Ministry of Transport, Vulcan, who explained that, for
example, in the case of the plane that had landed and had been damaged on landing,
when it reached the airport there was no sign of the passengers who had been on that
plane. All this was, let us say, outside the procedures and rules. This was a civilian air
flight, it was not a State flight, it was not a police flight. Under the Chicago
Convention, it was normal that the passengers be identified. The identification was
eventually transmitted to us, but only after a considerable insistence on our side. What
we were told was: ‘we did not meet anyone, we don’t know anything’. So, everything,
all the information we received, gave us the impression that this matter was handled in
a very opaque way and the conclusion we reached is that we could certainly not
exclude the fact that a secret detention centre had existed in Romania.”
364. In his replies to the Government’s questions as to how, in his view,
the Government could “prove that there had been no buildings on its soil
ever used as ‘black sites’”, Mr Fava stated, among other things:
“[By means of] an inquiry which was deep enough to match the seriousness of the
charges, well, such an inquiry, according to practice and, let us say experience, which
we had, and the work we were doing, could not limit itself to coming to a conclusion
without hearing all those who could have produced further elements. The
circumstance that this inquiry chose not to disclose its conclusion and its work, with
the exception of a chapter, and not to hear, during the work, NGOs or airport staff or
journalists, appeared to us to be a rather ambiguous attitude. An Inquiry Committee
has the duty to ascertain the truth and use all possible means to get to that truth. It
appeared to us, and that was confirmed by the President of the Committee, that it was
chosen not to check all [emphasis while speaking] the facts and hear all the people
who could have provided further elements. This obviously doesn’t give any certainty
about the fact that there has been a secret detention centre, but it did not help
excluding any suspicions about that.”
He further added:
“When we went to Bucharest to meet the Inquiry Committee, we were told that
neither journalists nor NGOs nor airport officials had been heard. They didn’t mention
the fact-finding missions on airport sites to us, but they did confirm the fact that a
large part of those who could have provided a different point of view were not heard.
Also the time during which the Committee worked, if I remember correctly well, we
are talking about facts of ten years ago, was quite quick. Our Inquiry Committee
worked for two full years to come to this final report, but it appears that the Senate
Committee worked for far less time and that the conclusion was rather quickly
reached, once the working session was set up.”
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365. In response to the Government’s question regarding the twenty one
“stopover flights” (see also paragraphs 271 and 280 above), Mr Fava stated:
“The evidence we have, through the information provided by the US Control Center
and from Eurocontrol, concerns the stopover of 21 flights. But we do know also that
in two cases the route of the flight registering the stopover in Bucharest coincided
with the extraordinary rendition of two victims. This is the case of the N313P which,
in September 2003, from the 21st to the 23rd of September, flew from Washington to
Prague, Tashkent, Kabul, Szymany, Bucharest, Rabat, Guantánamo. And during that
route, one of the passengers in that plane was Benjamin Mohamed, who was then
detained in Guantánamo. Another flight with the same aircraft, in January 2004 from
Skopje, in Macedonia, to Baghdad, Kabul, Bucharest and then Palma de Mallorca,
tallies with the period in which, on that plane, El Masri, German citizen, was
transported, so in at least two cases we are not dealing with stopovers only but rather
with an operational cycle of these planes within which, no doubt, these planes were
carrying two rendition victims, and these are totally ascertained cases, not only during
the judicial phase but also in the conclusions to which our Committee came to,
namely that during those days, those persons were being illegally transported in that
airplane.”
366. In relation to the 2014 US Senate Committee Report and a question
from the applicant’s lawyers, Mr Fava responded:
“I testified before the American Senate’s Inquiry Committee, although in previous
years, and I do recall that there was a strong determination to get to the truth as to
what had happened and also a great determination to condemn a practice which, if
ascertained, would have been considered to be totally illegal and, furthermore, totally
inappropriate for combating terrorism. About this point, we realised in the years
immediately following our mission of inquiry under the new administration of the
White House that there was a global revision, a very different evaluation on the way
they had operated until those years. Extraordinary renditions were very negatively
assessed, and this evaluation has also been confirmed by certain CIA officials. We
met Vincent Cannistraro, who was a former agent, the Head of Counter-Terrorism in
the CIA, who told us that when they had chosen to proceed to extraordinary renditions
within the agency, many people realised that this was a mistake because, as actually
happened, not only would it create a climate of even greater hostility but it would also
have led to the risk of terrible judicial errors, as actually happened subsequently,
because often they were led to decide to abduct a suspected terrorist on the basis of
information that the local services in Pakistan, Afghanistan, Syria, Morocco and
Egypt were prepared to give to CIA colleagues. In certain cases, those were forms of
mere manipulation.
We heard four victims of extraordinary rendition – we are the only international
organisation that had the possibility to speak with them – and one of them told us
about his 11 months spent in a secret prison in Syria, being tortured every day until
they had to release him, because it was understood that a great judicial error had been
committed. And we also know that we dealt with several cases, however only the
cases of the more fortunate people, namely of those who were European citizens or
people abducted in Europe, therefore with public evidence that could not be hushed
up. But aside the many cases we dealt with, we fear that there are many other cases of
citizens less protected, let’s say, by their nationality and we have no figures here. So,
this was very much in the awareness of the American Senate’s Inquiry Committee, as
a very heated discussion that developed within the CIA itself during those years, and
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163
of which we heard recollected traces, thanks to the availability of some former CIA
officers to speak with our Committee.”
B. Presentation by Senator Marty and Mr J.G.S.
available documentary evidence, including flight data, in respect
of Romania and the case of
367. 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) and Husayn (Abu Zubaydah) v. Poland (cited above,
§§ 305-312).
368. 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 are taken from the verbatim record.
369. The aim of the presentation was explained by the experts as
follows:
“The firm intention of our presentation today is not to reveal anything new or
revolutionary, but rather to offer a cogent distillation of the available data and
documentation in a manner which might allow the construction of a more coherent
chronology of the CIA’s rendition, detention and interrogation programme. In
particular, it is a chronology in which the applicant in today’s proceedings features
prominently, and indeed one in which the territory of Romania, the High Contracting
Party to today’s proceedings, also holds a prominent status.
The Court will recall, Madam President, the testimony provided by Senator Marty
and myself in the cases before Section IV of the Court in December of 2013, in which
today’s applicant, Abd al Rahim Al Nashiri, was joined by Abu Zubaydah in alleging
violations of the Convention by the Republic of Poland. The ‘black site’ situated on
the territory of the Republic of Poland will also be mentioned in today’s presentation,
but I should like to request that the Court take note of the material presented on that
earlier occasion, and indeed the judgments of the Court in those two applications, as a
foundation to the material which I will present today.”
370. This was followed by the presentation of the 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
paragraph 250 above; see also and Al Nashiri v. Poland, cited above, §§ 321
et seq.):
“It is important to understand the system in which this chronology resides, and it is
for that reason that we commence our presentation by explaining the so-called ‘global
spider’s web’ which was presented as part of the reports of the Marty Inquiry of the
Council of Europe in 2006 and 2007. These are movements not only of military
aircraft or conventional aircraft used in the pursuit of counter-terrorism or military
operations, but also importantly charter aircraft, private aircraft, operated under the
cover of business or private citizens’ operations through a complex shell game, in
which prime contractors, aviation subcontractors, flight planners and indeed the
national authorities of Council of Europe Member States are complicit, ensuring that
flight movements are impossible to track or record in real time and indeed extremely
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difficult to account for in retrospect. I shall use a graphic map to illustrate this
system.”
He further explained:
“On this map, there are four categories of airports in which aircraft in this system
landed. The first is described as ‘stopover points’. These are places at which aircraft
would conventionally stop for a short period, usually several hours, in order to refuel
en route to another location.
The second category, ‘staging points’, describes locations at which two or more
aircraft often converged, crews convened and indeed rendition operations were
planned.
The third category, ‘pickup points’ represent the outcomes of our investigation into
specific rendition operations. In each of these places, a detainee was picked up by a
rendition crew and rendered to a secret detention facility, usually in the Middle East
or North Africa, by the CIA. Several of these, as situated in Europe, have already been
accounted for by this Court in cases such as El Masri v ‘the Former Yugoslav
Republic of Macedonia’, which is depicted here by Skopje, and most recently the case
of Abu Omar, the cleric who was rendered after having been picked up on the street in
Milan, Italy.
The final category on this list, however, is the most important. These are described
as ‘detainee transfer or drop-off points’. They were, in short, the destinations of CIA
rendition aircraft, places to which detainees were brought for the purpose of being
detained secretly, interrogated and, in the majority of cases, ill-treated at the hands of
CIA interrogation teams in a manner which, prima facie, would violate the European
Convention on Human Rights.
The material interest of our inquiry was to establish in particular which sites in this
category were situated on the territory of Council of Europe Member States, and as
you can see from the graphic, there are ... two countries initially, implicated in Senator
Marty’s inquiries. The first of those, Poland, was the subject of the earlier case of
Al Nashiri and Abu Zubaydah v. Poland. The second country, which is depicted here
by two airports, Timişoara and Bucharest, is the respondent in today’s proceedings,
Romania. The motif of a global spider’s web derived from our efforts to track the
movements of aircraft across this system, and I will demonstrate two specific
rendition circuits in order to show how that picture is built up.”
371. The presentation then focused on two rendition circuits, described
in the order chosen by the experts, which were carried out by plane N313P
on 16-28 January 2004 and 20-24 September 2003 (see also paragraphs 272,
276, 327-330 and 336-337 above; and Husayn (Abu Zubaydah), cited above,
§§ 108-116 and 285).
The 16-28 January 2004 circuit was related as follows:
“The first of these [circuits] occurred in January 2004 and has become notorious
because of the sheer number of detainees who were rendered, in the course of a
12-day period, between multiple different detention sites across the Middle East,
North Africa and, indeed, Europe. The aircraft in question, N313P, was operated by
the CIA’s own aviation services provider, Aero Contractors. Having departed from
Washington, it stopped over in Shannon, before flying to a staging point in Larnaca,
Cyprus. From there, its first detainee pickup occurred at the detention site in Rabat
where, on 22 January 2004, the British resident Binyam Mohamed, was rendered from
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165
secret detention in Morocco to secret detention in Kabul. From Kabul the plane flew
back in the direction of North Africa to Algiers, carrying with it a recently-released
Algerian national from a US military detention site in Kabul. From Algiers it travelled
to a second staging point in Europe, in Palma de Mallorca, whereupon the crew
embarked on the rendition of Khaled El-Masri. He was picked up on the night of 23 to
24 January in Skopje in ‘the Former Yugoslav Republic of Macedonia’ and
transported via Baghdad to four months of secret detention in Kabul. The same crew,
the same aircraft, departed Kabul on the night of 24 January and flew in the direction
of Europe to a landing in Romania. I shall explore this particular leg of this flight in
extensive detail, later in my presentation. From Romania, the crew and the plane
returned to a staging point in Palma de Mallorca, for further rest before returning to
Washington. All of the flights depicted on this graphic, Madam President, occurred
within the space of 12 days, in January 2004.”
The 20-24 September 2003 circuit was related as follows:
“A second rendition circuit, which occurred in September 2003, also implicates the
territories of two Council of Europe’s Member States. Having departed from
Washington, this aircraft, again N313P, flew to Prague in the Czech Republic for a
stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees,
handed over to the CIA by local intelligence services, were rendered to secret
detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported
several detainees out of detention in Afghanistan towards detention in Europe.
The first stop in Europe was the detention site at Szymany, in northern Poland,
which was explicitly described in the [Al Nashiri v. Poland and Husayn (Abu
Zubaydah) v. Poland] proceedings, and this circuit is unprecedented and indeed
unique because it is the only occasion on which a rendition flight carrying CIA
detainees left one European site and flew directly to another European detention site,
in this case in Bucharest, Romania. Again, that particular leg will be the subject of
further explanation later in the presentation. From Bucharest, the rendition plane
carried further detainees out to Rabat. These were persons who had boarded on earlier
legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for
four months, in late 2003 and early 2004, the CIA operated a secret detention facility
apart from the larger military facility at Guantánamo Bay.”
The following explanation was added:
“In illustrating those two rendition circuits, I am displaying a small fraction of the
rendition flights and circuits that Senator Marty’s Inquiry uncovered in 2006 and
2007. The totality of these operations was to create this motif: that of the global
spider’s web, a system in which rendition aircraft, criss-crossing across the globe,
created an almost untraceable and unaccountable system of unlawful detainee
transfers.”
372. Using the above two rendition circuits as examples, the expert-
witnesses further explained the practice of the so-called “dummy flight
planning”, a process of intentional disguise of flight plans for rendition
planes (see also paragraph 264 above; and Al Nashiri v. Poland, cited
above, §§ 316 and 318):
“One of the key discoveries of our inquiry in 2007 was that rendition aircraft had
been very difficult to trace because of deliberate acts of disguise and deceit employed
by the CIA and its partners in planning and executing their detainee transfer
operations. In 2007, through months of rigorous analysis of aeronautical data, we
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were able to present evidence of the practice of dummy flight planning by the CIA in
conjunction with partners in Polish air navigation services. Since the report of 2007
came out, and this work has been extended and indeed deepened, we are now in a
position to demonstrate how the similar practice of dummy flight planning was used
in respect of Bucharest Băneasa airport in Romania.”
373. As regards the 16-28 January 2004 circuit:
“This is the flight circuit of January 2004, which I demonstrated earlier in the
presentation. In particular, we focus on the leg from Kabul, Afghanistan, towards
Bucharest, Romania, and in this process I am using specific elements of a data strings
analysis which was conducted using four data sources, including those of Eurocontrol
and indeed Romanian authorities. At step 1, the first flight plan is filed. A company by
the name of Jeppesen, which was the subject of a prominent case before the United
States Supreme Court, brought by the American Civil Liberties Union, habitually filed
false flight plans in order to disguise the routes of rendition aircraft. In this case, the
first flight plan for 24 January 2004 was filed to Timişoara, Romania. But N313P, the
aircraft in question, did not fly that route. Jeppesen filed a second dummy flight plan
out of the same airport, Timişoara, to Palma de Mallorca in Spain. Again, this was a
route which N313P had no honest intention to fly. Furthermore, a third and
contradictory dummy flight plan was filed, this time in respect of Timişoara to
Prague, and Romanian authorities, in their own efforts to understand the stated
intentions of this aircraft, also made references to both legs 2 and 3 in their own
filings on the aeronautical fixed telecommunications network. The aircraft did then
embark on the evening of 24 January 2004. On board was a CIA detainee by the name
of Hassan Ghul who had been handed to the CIA by United States military authorities.
He was rendered out of a ‘black site’ in Kabul to the Romanian ‘black site’ situated in
Bucharest. This landing in Bucharest was an undeclared landing, at no point had a
valid flight plan for this route been filed in the international AFTN system. At this
point, Romanian authorities, specifically the NOTAM office at Bucharest Băneasa
Airport, began to file plans in respect of this aircraft. A plan was filed for the first
time citing Bucharest airport, by the Romanian authorities, from Bucharest to Palma
de Mallorca and indeed, that evening, having dropped off the detainee, the CIA
aircraft flew the route filed by their Romania counterparts. Finally, Jeppesen, the
CIA’s flight planner, resumed its duties of flight planning and carried the aircraft and
its crew back in the direction of the United States. What this graphic represents,
honourable judges, is not a one-off occasion. It is rather a systematic practice
deployed by the CIA and its aviation service providers to disguise CIA flights into and
out of its most sensitive operational locations. In our reporting in 2006 and 2007 we
were often confounded by the apparently contradictory and inconsistent information
provided to us by multiple sources of data, including those inside of Romania in the
Senate Inquiry Committee and indeed among the various aviation authorities whose
filings did not appear to add up. We now know that the reason for these
inconsistencies and contradictions was the deliberate practice of dummy flight
planning employed by the CIA. But they cannot execute this tactic alone. They
depend upon, however discrete, a role played by the national counterpart authority,
and just as in the case of Poland, demonstrated in the earlier proceedings, here the
Romanian air navigation services filed plans in respect of an aircraft which was on its
territory for the sole purpose of transporting detainees into secret detention.
Romanian documentary records demonstrate the landing of this aircraft at Băneasa
Airport on 25 January, despite the absence of a valid flight plan. This document refers
to the ‘flown’ flight path, the actual flight path, from Kabul to Bucharest, to Palma de
Mallorca, but that was a route for which no flight plan existed in the international
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167
system of control. Further similar documents illustrate the ground handling and other
services provided to this aircraft whilst it was on the ground for a short period on that
night at Băneasa Airport, and through our investigations we have established that this
disguised flight forms part of a recognised CIA rendition circuit. These are the
individual routes which I have already demonstrated with the graphic, I shall provide
the full detail to the Court in written form after the presentation. But as I stated, this
was not a one-off, this was part of a systematic practice, and through our
investigations we have generated numerous, up to twelve, individual instances on
which CIA rendition aircraft have transferred detainees into, and out of, Bucharest,
Romania”
374. As regards the 20-24 September 2003 circuit:
“This set of flight logs pertains to the unprecedented transfer I described earlier, in
which detainees from Poland, including the presumed architect of the 9/11 attacks,
Khalid Sheikh Mohammed, were transferred directly to Romania on the night of
22 September 2003, the opening of the Romanian site. This particular set of logs
depicts an instance in which a detainee was transferred out of Bucharest and taken to
further secret detention here in Amman, Jordan, and that practice again was prevalent
because detainees did not tend to stay in one secret detention site for lengthy periods,
counted in years; they were rather rotated and recycled through multiple different CIA
secret detention sites, on periods averaging between six and twelve months. Here, a
detainee brought to Romania in September was taken out in October and transferred
to further secret detention in Jordan. I will provide all the flight logs and the evidence
that supports them to the Court upon request.”
375. The time-frame for the alleged operation of the CIA “black site” in
Romania and its colour code-name assigned in the 2014 US Senate
Committee Report were identified as follows:
“The [2014] Senate Committee Report also provides extensive insight into the
timeframe, the life span for which the ‘black site’ in Romania was operated. It is
important at this point to state that the word ‘Romania’, the country name, does not
appear openly in the declassified version of the report. Rather, as with all the sites in
question, it is referred to by a colour code name.
The code name Detention Site Black corresponds in such precise and extensive
detail with every one of the operations I have described in today’s presentation, from
the first flight into Romania in September 2003 through the transfers of individual
detainees, including Hassan Ghul, Khalid Sheikh Mohammed, Abu Faraj al-Libi, into
Romania on specific dates in accordance with their interrogation schedules that
Romania, its territory, its airspace, its detention facility, is inseparable from
‘Detention Site Black’. It is my premise, categorically, that it is the case that Romania
is the site referred to as ‘Detention Site Black’. From that point of departure, we are
able to find several specific references. Here is one, in a section which describes
Detention Site Black and another CIA site, which states that ‘CIA detainees were
transferred to Detention Site Black in this country in the fall of 2003’. It goes on to
state that this coincided with the closure of the predecessor ‘Quartz’ base, which is
referred to in the report as Detention Site Blue. In terms of its closure, it is stated in
the report that after the publication of the Washington Post article, that is the piece of
reporting, the Pulitzer Prize-winning article by Dana Priest, to which Senator Marty
referred, dated 2 November 2005, the authorities of this country demanded the closure
of Detention Site Black within a number of hours fewer than 100. We can see that
from the redaction, it does not state exactly how many hours, but it is no more than
four days. And in fact, as I described, 5 November 2005, using its practices of dummy
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flight planning and a further disguise which I will demonstrate shortly, the CIA
transferred all of its remaining CIA detainees out of the facility within this time
period.”
376. In conclusion, referring to the Romanian authorities’ knowledge of
the operation of Detention Site Black, the experts added:
“Again, as stated, flights into and out of Romania correspond exactly with the
narrative described in the [2014 US Senate Committee Report]. It might be pointed
out, in relation to this specific package, that in order for the authorities of the host
country to demand the closure of a detention facility, they must have known of its
existence. Furthermore, in light of the report in the Washington Post, which went into
intimate detail of the CIA’s operations including the forms of ill-treatment and
interrogation to which detainees therein were subjected, it follows that the authorities
of the host country of Detention Site Black – and let me be clear – that is the
authorities of Romania, must have known of the nature of operations occurring on
their territory.”
C. Senator Marty
377. Senator Marty was a member of 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 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 249-267 above)
On 2 December 2013 Senator Marty testified before the Court at the
fact-finding hearing held in Al Nashiri v. Poland (cited above, §§ 319-323)
and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305-317).
378. In the present case, in response to the questions from the Court and
the parties, Senator Marty testified as follows.
379. In respect of sources of information that was collected during the
Marty Inquiry and evidence on which findings of the 2006 and 2007 Marty
Reports were based, Senator Marty stated:
“We were fortunate enough to find sources, and this must be stated clearly, firstly in
the United States, of a very high level. It is important to know that within the
American administration and the intelligence services, especially those of the CIA,
there were a lot of people who were not at all in agreement with what Rumsfeld and
Dick Cheney had imposed upon the CIA. And I, who had already had many contacts
as a prosecutor with American services, was thus able to obtain this information.
What is important to say is that we devised a working methodology, we never relied
on one source alone, but when you get important information from once source, it is
much easier to activate and to receive further information given in confidence from
other sources. In the end we had about thirty sources, if I recall, that are in different
countries and notably in Romania, and there too at a rather surprising level. And in
2006 ... we were above all able to concentrate on the movements of rendition flights
and we were able to trace this famous spider web, this spider’s web. This triggered off
all sorts of other information that hailed from people who agreed to talk, of course,
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under the most rigorous confidentiality. Let me point out that many of these people
risked a lot, several decades of imprisonment; they could have been accused of high
treason in their countries. ...
The seriousness of the sources that provided us with information was strikingly
confirmed by the Feinstein report, the report of the American Senate which was
published some 10 years after my first report. In the Feinstein report there are
absolutely extraordinary confirmations of what we had already described, in part at
least, or in the essential parts. The Feinstein report sought to cover up the countries by
giving them a colour. If we know a little about the events that are described, it is
child’s play to see which countries lie behind these colours. ...
We focused our initial research on the United States because it seemed obvious to us
that the leaks had occurred in the United States and knowing how serious the
Washington Post is, in particular the journalist Dana Priest, who is one of the major
US journalists, who we knew had contacts with certain highly placed people in the US
administration and the secret services, we thought we ought to start digging in that
direction. And the fact that Human Rights Watch, which is also a very serious NGO,
had published the names of Poland and Romania, meant that they too had important
sources of information. Our research ... enabled us to encounter not second-level
agents but very important people in the US services. ...
When we were able to obtain that information, not just from one American source
but from several, we tried to make contacts in other countries in Europe and when the
people we had contacted understood that we already knew a lot and that we had got
this information from the US secret services, those people were far more prepared to
speak out. I think you need to understand the dynamic in this way: it was possible to
obtain very high-level intelligence. I will not name the countries, but in some
countries we were even up to the level of ministers who spoke to us. Of course, one of
the fundamental aspects for my part was that I gave all possible guarantees of
protecting our sources. So we took every possible precaution to protect our sources, to
make it impossible for people to trace back to our sources. ...”
380. As regards the Romanian high-office holders mentioned in
paragraphs 211-218 of the 2007 Marty Report (see paragraph 262 above) as
“holding first-hand knowledge of CIA operations on the territory of
Romania”, including the former President of Romania, Mr Iliescu, and the
Presidential Advisor on National Security, Mr Talpeş, and the question
whether the Romanian authorities “knew or ought to have known” of the
CIA rendition operations and purposes of the CIA aircraft landings on
Romanian territory in 2003-2005, Senator Marty testified:
“... I would also like to point out that in the framework of the NATO system, for all
these operations, NATO had applied the very highest degree of secrecy under the
NATO code. This highest secrecy code can be summed up as the ‘need to know’
principle; it is only people who strictly need to know who should be aware of what is
going on and they must only be aware in as far as it is necessary. So I do not think that
the Romanian authorities knew that there was waterboarding, that there was torture,
and so on. But the people [the high-office holders] I referred to, and this is based on
extremely precise testimony, must have known that the CIA had used their territory
for transfers of prisoners in the context of the war on terror. We never said that the
Poles or the Romanians had run those prisons, we always said those prisons were
exclusively managed by the CIA. And the CIA would not accept any intrusions, not
even by any other American services. What we do say is that those people – probably
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the majority of the government – knew nothing about it but those people must of
necessity have been aware that something very unusual was going on: planes were
landing, people were being disembarked, and the like. Or in any event they did
everything to see nothing, hear nothing and say nothing, and that is a classic approach
which we have in all countries where there have been renditions or secret prisons.”
381. In response to the question whether in the Marty Inquiry an exact
physical location of the alleged CIA “black site” had been established,
Senator Marty said:
“No, because we did not have a specific indication. The site was, however, the most
protected element secrecy-wise, even people who knew that this anti-terrorist
operation was going on did not perforce know where the site was precisely located.
For Poland, it was easier. We were even able to go in situ and were able to obtain
information in situ. So, for [Romania], it was far more complicated.”
In response to the Government’s questions concerning indications of
such a location, he added:
“I say it is true that at the time we were not in a position to indicate the place of
detention, but that Romania participated in these CIA programmes, there is no shadow
of a doubt in my mind about that.”
D. Mr J.G.S.
382. 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 PACE’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 28 March 2011, in El- Masri, Mr J.G.S. submitted an expert report
detailing the factual findings of his investigations into the applicant’s case
(see El-Masri, cited above, § 75). On 2 December 2013 Mr J.G.S. testified
before the Court at the fact-finding hearing held in Al Nashiri v. Poland
(cited above, §§ 324-331) and Husayn (Abu Zubaydah) v. Poland (cited
above, §§ 305-312 and 318-325).
383. In his testimony before the Court, he stated, among other things, as
follows.
384. In response to the judges’ question whether on the basis of the
evidence known to him, Romania “knew or ought to have known” of the
nature of the CIA extraordinary rendition programme and that the
programme operated on its territory, Mr J.G.S. stated:
“It is quite clear to me that the Romanian authorities not only should have known,
but in fact did know of the nature and purpose of the CIA’s secret operations on its
territory. In our report of 2007, for the Marty Inquiry, we inferred this conclusion
already then, 9 years ago, based upon excellent source information that we had
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171
procured from both sides of the Atlantic, multiply corroborated, validated and verified
by documentary records, and rooted in our understanding of a conceptual framework,
and a practical implementation of bilateral agreements struck between the CIA and its
counterpart agency in Romania.
But I can say to the Court today that this is no longer an inference, it is no longer
simply a collation of disparate sources, because the [US] Senate Committee of
Inquiry, and I refer the Court to page 97 of that 499-page executive summary, has
explicitly stated that the host authorities of the country in which Detention Site Black
was located, provided co-operation and support for those activities, and indeed that
the CIA, through its station in Romania, was able to provide a substantial sum of
money, in the region of ten million United States dollars, as a ‘subsidy’ to its
Romanian counterparts in recognition of their active participation.
In the report in 2007, we talked about the extraordinary permissions and protections
that Romania provided. We talked notably about secure zones, of which there were
several on Romanian territory, and of which we knew of the existence of at least one.
We characterised this as being a level of cooperation that depended on authorisation
from the highest levels of the Romanian state authorities. That aspect too, Your
Honour, is confirmed by the US Senate Committee Inquiry. It talks about, explicitly in
that same paragraph, on that same page, the highest levels of the country’s
government. So what we heard from our sources who, incidentally, have remained
credible upon our assessment, has now been formalised in the form of the reporting by
the Senate Committee which, incidentally, had access to a vast array of classified
information, which we did not have access to.
And so we wish to state, quite clearly, categorically, that the Romanian authorities,
at the highest level, did know about the existence of secret detention on their territory
and furthermore that they were aware of the precise purpose of the rendition flights
entering and exiting the country, and the conditions, or roughly the conditions, under
which detainees were held in between their arrivals and their departures.”
385. In response to the judges’ question as to how a specific detainee
could be linked with a specific flight and how it was possible to identify
which specific person or persons had been transported on a specific
rendition plane, the expert-witness stated:
“I can confirm that I participated closely in the inquiry under Commissioner
Hammarberg which led to the production of the memorandum in March 2012 and
I can also confirm that, at that point, almost five years after the conclusion of our
second Marty Report, we were in possession of substantially more information,
notably through the declassification of reports from the United States, but also
through an evolving process of developing sources, developing new relationships,
filing requests for information with different authorities, and indeed benefiting from a
wide range of partnerships and alliances in some of the countries in question and
indeed in the United States.
The process of linking a specific detainee to a specific flight was, indeed, for a long
time elusive. In order to make this connection, one requires both authoritative
information about the planning and execution of the flight and furthermore, from the
CIA itself, authoritative information as to the interrogation schedule, the process of
debriefing or interrogating the detainee, and specific junctures in that detainee’s
detention which constitute a move or a change or a development or a transition in that
detainee’s treatment. As I demonstrated in my presentation with reference to the CIA
Inspector General’s Report, there are occasions in the declassified documents on
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which moves are referred to explicitly, and indeed are given dates. When that move
links a particular named individual, such as Al Nashiri, with a point of provenance,
such as Thailand, and a point of destination, such as Poland, it is then possible, within
a very small margin of error, to go looking for a flight that corresponds with those
dates.
This example was indeed the breakthrough in that regard, this methodology, because
for the first time in the Inspector General’s Report [in the present judgment referred to
as ‘the 2004 CIA Report’], we were told that an interrogation schedule concluded on
4 December [2002]. The reason for its conclusion was a move, and furthermore that
Al Nashiri, together with Abu Zubaydah, was taken to another ‘black site’. The only
means of transportation that the CIA used to move detainees was rendition aircraft,
and through our assessment and investigation of rendition aircraft over multiple years,
we have been able to crack that system and to trace those movements using contractor
documentation, international aeronautical services information, and all the other logs
that I have used in the presentation. So the linking depends on a specific correlation of
information from both the aviation side and the operational side in the CIA’s ‘black
sites’ themselves. I would direct you, Your Honours, to the [US] Senate Committee
Inquiry for multiple further specific date references and specific references to
individuals being moved between different sites.”
386. Replying to the judges’ question as to how could Mr Al Nashiri
could be differentiated as being rendered to Romania on 12 April 2004 from
other detainees known to have been held in Guantánamo and rendered by
the CIA from there at approximately the same time, Mr J.G.S. stated:
“I can give you two specific examples. Ramzi bin al-Shibh, who had been in
Morocco with Al Nashiri initially, in 2003, was taken back to Morocco, as was Ibn al-
Shaykh al-Libi, who was the source of the now notorious intelligence on Iraq, which
led Secretary of State Powell to make a case for war. He was held in Guantánamo Bay
at the same time as Al Nashiri, but he was taken to Morocco. How do we know?
Because he features in the further descriptive narrative regarding Morocco in the [US]
Senate Committee Report, as does Bin al-Shibh. These two individuals are cited as
having gone back to Morocco and having found the conditions of their detention there
to be impossible to sustain because of abuse or cries of abuse they could hear taking
place in adjacent cells, part of the Moroccan system. This again was a source of some
acrimony, some misunderstanding, some difficult relations between the CIA and the
Moroccan counterparts and as such features prominently in the Senate Committee’s
Inquiry. There is no mention whatsoever of Al Nashiri there, and I maintain that is
because he was in Romania.”
387. Replying to the Government’s question as to which evidence had
led him to the conclusion that a simple change in flight plans or in the use of
ultimate destination represented a cover-up with the complicity of the
national authorities, Mr J.G.S. stated:
“Thank you for your question, Madam. This allows me to introduce to the Court
some very important insights gleaned from the flight planning process at its point of
origin in the United States and the documents of which are included in the materials
before the Court by virtue of the docket in the New York State Court litigation
between Sportsflight Air Inc. and Richmor Aviation.
In particular, there are documents within this docket which refer specifically and in
advance to deliberate attempts to file false destinations for rendition aircraft. There is,
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173
for example, a differentiation between points of departure, points of destination, as
Madam Agent rightly said, ‘alternates’, and then, what the CIA describes as ‘hard
arrival points’. ‘Hard arrival’ were the real destinations, the real timings that the CIA
demanded its contractors to fulfil. Everything else in the flight planning process, as
was delegated to Jeppesen, Air Rutter International and other contractors, was allowed
to have a veneer of compliance with international civil aviation rules, but was in fact
nothing more than a cover, a shell, behind which these unlawful operations actually
took place.
I shall address directly, Madam, your question: how can I differentiate between a
simple in-flight change of plan? I could countenance such an alternative explanation if
it were to have happened but once, perhaps twice or occasionally in a sequence of
rendition flights. But in respect of Romania alone, this systematic practice was
deployed up to twelve times, using every time the same methodology. Specifically the
points of departure would be fixed because they were physically where the plane took
off from, but points of destination, ADES, as they are called in the AFTN system,
were never stated as the actual airport to which the rendition aircraft was destined. If
at all Bucharest Băneasa appeared, it appeared only as an alternate, and on several
occasions it did not appear at all in any flight plan, either as destination-in-chief or as
alternate, despite the fact that trip sheets, government contracts, even pre-emptive
billing invoices had been prepared in the United States by the CIA’s contractors,
stating explicitly what the hard arrival airport and time was, and on each occasion
Bucharest – Baneaşa was that hard arrival point. It cannot be put down to mere
innocent coincidence, in-flight change of plan, when it is conceived of in advance,
when there is only one purpose for which these rendition flights are being deployed,
and when the only site that corresponds with the cables, the contracts, the flight plans,
the instructions, the billing invoices and, indeed, the multiplicity of source testimony,
is the ‘black site’ hosted on Romanian territory in Bucharest. So an alternative
explanation does not fit in these circumstances; there is one clear and categorical
truth, and that is, this was a deliberate act of deceit to disguise unlawful detainee
transfer activity.”
He further added:
“... [I]n the process of executing these renditions, the CIA did file flight plans for
every aircraft in which dummy destinations were inserted into the planning text in
order to provide the aircraft with a premise upon which to enter the airspace of the
country in question. So, for example, as the Court heard in the proceedings against
Poland, on multiple occasions, aircraft filed for destinations such as Prague in order to
have a premise to enter Polish airspace, after which the Polish air navigation services
would navigate them to a landing at Szymany. When the Polish authorities produced
records of landings at Szymany, they stated explicitly in their own documentation that
several of these landings had occurred ‘brak FPL’ (‘without a flight plan’), precisely
the point that you have just suggested would be impossible. It happened. In Romania,
as I demonstrated in my presentation today, flight plans were filed for alternative
destinations which included other Romanian airports, Timişoara, Constanţa, but only
in order to give that aircraft a premise upon which to enter Romanian airspace. From
entering airspace, Romatsa and the counterparts in the Romanian authorities,
navigated those aircraft to undeclared landings at Bucharest, Băneasa. I have this upon
the first-hand authority of persons involved in the execution of those rendition flights.
I also have Romanian documentation demonstrating these landings at Bucharest,
Baneaşa, indisputably because a plane is physically on the ground in Bucharest and
yet, for the same flights, having trawled all the multiple sources of aviation data in my
possession, I have not found any flight plan valid for a landing at Băneasa. Hence, the
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same systematic practice, deliberate disguise and deceit, used by the CIA but
dependent upon the complicity and cooperation of Romanian counterparts.”
Lastly, in relation to the Government’s question relating to the “STS”
special status designation accorded to some CIA rendition aircraft,
Mr J.G.S. stated:
“...[T]hose aircraft used by the CIA in conjunction with its in-house aviation
services provider, Aero Contractors, more often than not cited this special designation
in their flight plans. There were two aircraft in particular, both of which travelled to
Romania, N313P and N379P, which fall under this designation. It is explicitly stated
and cited in the flight plans filed by Jeppesen Dataplan, the aviation services provider
used for these aircraft, that STS or state indicator is averred as a special privilege vis-
à-vis all authorities whose territories the aircraft will traverse or land in, in the course
of its circuit.
What that status affords the flight is a different characterisation in the flight plans,
but that is not to suggest that upon landing in Romania there would be any diplomatic
reception or any form of special treatment, in fact. On the contrary, most of these
aircraft landed without being subjected to basic border guard controls, basic customs
inspections. They were not granted special treatment in the sense of a state
designation, they were in fact granted special treatment of an entirely different sort, of
a sort which indicates permission to perform unlawful detainee transfers. So you ask
me, why did they invoke the STS indicator, or on what basis does it change the status?
What it does, is that it creates a further layer of deceit as to the real purpose of these
aircraft, it creates the impression that these aircraft are somehow untouchable and it
creates the impression that they ought not to be scrutinised by their receptor
authorities. But does it change how they are received on the ground? In itself, no, it
does not.”
E. Mr Black
388. Mr Black is an investigator with the Bureau of Investigative
Journalism and with Reprieve, having 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
transportation and illegal detention of prisoners in European countries by
the CIA. He was involved in the preparation of the 2015 LIBE Briefing (see
also paragraphs 282, 289 and 355-358 above). Since 2010 he has
continuously carried out research on the CIA Eastern European “black
sites”.
389. In his testimony before the Court he stated, among other things, as
follows.
390. In response to the judges’ question whether, on evidence that he
had accumulated in the course of his research and had been known to him, it
could be established beyond reasonable doubt that a CIA detention facility
had indeed existed in Romania in 2003-2005, Mr Black stated:
“I believe it is clear, beyond reasonable doubt, that there was a CIA detention
facility in Romania. I am convinced on a wide array of different types of evidence that
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175
it operated from September 2003 until November 2005. I believe it is clear beyond
reasonable doubt that, among others, Khalid Sheikh Mohammed was held in it,
Hassan Ghul was held in it, Janat Gul was held in it, Abu Faraj Al-Libi was held in it,
Al Nashiri was held in it, Walid Bin Attash was held in it, on two occasions in fact,
Samr al-Barq was held in it, Abu Munthir al Maghrebi was held in it. I believe there
are indications that others, including Hambali, Lilie, Mohammed Qurban Ibrahim,
were held in it. All of these statements are backed by, if you will, an array of evidence
which includes aviation data that can be categorically related to the US Government’s
rendition programme. It includes statements made by the [US] Senate Committee
Report that was declassified in 2014, it includes new material that has just recently
been declassified by the government, by the US Government earlier this month.
My findings in which I discuss the evidential basis for these statements were most
recently formulated in a briefing that I wrote for the LIBE Committee in September
last year. I am not sure if the Court has seen that document, I understood that the
LIBE Committee was going to publish it last year, but in fact I found that perhaps
they did not. If the Court has not seen that document, then of course I would be happy
to provide it. Since I wrote that, as I say, there have been some new developments in
the last few months where further research on the basis of the [US] Senate Committee
Report and newly declassified documents from the CIA that came out a few weeks
ago, have further confirmed the findings that I made in the original briefing and have
also added some new names and some new information to the list. But I mean, you
know, I can give you, if you wish, I could give you the dates of when each of those
specific individuals were held in Romania to the best of my knowledge and findings,
but I mean the fact that those individuals were held in Romania at various points
between 2003 and 2005 is absolutely beyond reasonable doubt, there cannot be any
alternative narrative to that that makes any sense.
In terms of your question as to where precisely the facility was where they were
held, this is not something that really I have exhaustively researched because it is not
really something that the methodologies I use are particularly able to build up a
picture of. I mean I would go so far as to say that it is likely, on the basis of all the
evidence I have seen, that the facility was in Bucharest. We are all aware of the
publication by Associated Press and others a few years ago that it was in the basement
of the ORNISS building. I mean I cannot say that my researches would confirm that
or deny that, certainly I have not seen anything that would tend to deny it.”
391. Replying to the judges’ question whether Romania “knew or ought
to have known” of the nature of the CIA rendition programme, that it had
operated on its territory and whether their knowledge had been such as to
enable the Romanian authorities to be aware of the purposes of the CIA
aircraft landings in Romania in 2003-2005, Mr Black stated:
“I think it is clear that the authorities were aware of it because, among other things,
they received money for it. They received more than eight million dollars, we can
determine from a reading of the [US] Senate Committee Report, how much more than
eight million dollars I do not know. And I think it is also clear from a reading of that
report that they demanded its closure at a certain point in November 2005. And I
believe it is normally common practice, as far as we can tell from the Senate Report
which I take in this instance to be authoritative, that the host country’s officials were
in the know about these facilities and the purposes of them. I think that it is clear, in
the case of Romania, that there were officials who were aware that they had been paid
money by the CIA to house prisoners and that the prisoners were being transported in
by covert means.”
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392. Mr Black further identified the alleged CIA detention facility in
Romania as the one referred to as “Detention Site Black” in the 2014 US
Senate Committee Report:
“I have gone into it in more detail in the briefing that I prepared for the LIBE
Committee, but to kind of give a brief summary, Detention Site Black is the site that
fulfils, in terms of its operating times, the flight paths that we know to have been
connected to prisoner movements and to the CIA’s rendition programme. Detention
Site Black is the one that correlates precisely with those flight paths that our research
has discovered, has reconstructed, if you will. There are, there are other indicators
which include cables that are sent from Detention Site Black that correspond to
prisoners who were flown into Romania on flights that are connected via their
contracts and invoice numbers to the CIA rendition programme, cables that
specifically reference the behaviour of certain prisoners. For example, the Senate
Report makes reference to a number of prisoners who were held at site ‘Black’ whose
movements have been correlated with flights moving into Romania or out of Romania
within the timeframe that makes sense.”
393. Answering the Government’s question as to what differentiated –
assuming that the flights in question were indeed rendition flights –
”stopover” landing points from prisoners’ transfers, Mr Black responded:
“...[T]here are a series of characteristics which, I mean, which prisoner transfers, as
in the point of pick-up and the point of drop-off, they occur on specific days, on
specific times that can be cross-correlated with documents relating to the movements
of prisoners. They occur in specific destinations, which consistently match other
accounts of the movements of prisoners. It is when you look at the totality of the
evidence, it is clear, for example, that some destinations are commonly used as rest
and recuperation. There are places where crews go before they carry out a transfer or
after they have carried out a transfer, so those are destinations like Mallorca, Dubai,
there are others, and there are destinations that are commonly technical refuelling
destinations which tend to be in the Atlantic because they occur when the planes are
moving from Washington D.C. to North Africa, the Middle East or Europe to carry
out rendition flights, so those are typically places like the Azores or Ireland, Scotland.
Now, in a sense, to answer that question fully we would have to go through each of
these flights in sequence and say why it does not make sense that in any one of them
Romania is the refuelling destination rather than the prisoner movement destination,
but I mean rather than do that, I would say in summary that, when you take the totality
of the evidence, the consistency with which the points of transit through Romania
match the points of transit that we know apply to the movement of prisoners, is such
that it does not really allow any alternative narrative.”
AL NASHIRI v. ROMANIA JUDGMENT
177
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE
ADMISSIBILITY OF THE APPLICATION
A. Romania
Convention in respect of the applicant
Romania, detention and ill-treatment in a CIA detention facility
in Romania and transfer out of Romania
394. 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.”
1. The Government
395. The Government, in their written and oral pleadings, asserted that
the applicant had not demonstrated that at any time during his detention
under the HVD programme he had fallen under Romania’s jurisdiction
within the meaning of Article 1 of the Convention.
In that regard, they referred to the general standards for State
responsibility set by international law, stressing that for an act to be
characterised as an internationally wrongful act engaging State
responsibility, it must be attributable to the State. In the light of the
International Law Commission’s Draft Articles (see paragraph 210 above),
there must be either direct knowledge and involvement in an internationally
wrongful act on the part of the State, or indirect knowledge, inferred from
the assumption that a State exercising its jurisdiction over its territory
should not ignore the commission of an internationally wrongful act within
its territorial jurisdiction.
In their view, for a better understanding of the responsibility that would
have been engaged had there been a secret detention facility in Romania, it
was still necessary to distinguish between different scenarios of the State’s
attitude and conduct: its potential agreement to put a facility at the disposal
of another State, its knowledge of the exact purpose of the operation of a
secret detention facility, the exercise of the State’s authority over that
facility, and whether it knowingly permitted the use of its territory for
activities entailing human rights violations.
396. Accordingly, Convention responsibility could be attributed to
Romania only if it had knowingly permitted its territory to be used by
another State for activities entailing human rights violations.
In that scenario, the question to be resolved was whether, in view of the
public awareness regarding the secret detention programme, the authorities
should have become aware of the fact that the flights operating on the
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AL NASHIRI v. ROMANIA JUDGMENT
territory of Romania had been CIA-operated flights and whether, on this
basis, they should have inferred that there had been a secret detention
facility in Romania and have acted in accordance with their obligation of
due diligence.
However, on the evidence before the Court, including the reports of the
international inquiries or non-governmental sources, there was no indication
that the Romanian authorities – autonomously or in cooperation with a third
State – had put in place or run a secret detention facility. No evidence
showed that the Romanian authorities had knowingly and expressly agreed,
after being informed of the purpose or nature of activities to be performed in
that facility, to put such a location at the disposal of third parties.
In support of their arguments, the Government relied on the Court’s case-
law, in particular Ilascu and Others v. Moldova and Russia (no. 48787/99,
8 July 2004), Loizidou v. Turkey (no. 15318/89, 18 December 1996), and
Soering v. the United Kingdom (no. 14038/88, 7 July 1989). They also cited
the International Court of Justice’s ruling in the case concerning the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro,
judgment of 27 February 2007).
397. The Government also considered that the International Court of
Justice’s judgment in the Corfu Channel case (United Kingdom v. Albania,
judgment of 9 April 1949, ICJ Reports 1949, p. 17) was particularly
relevant to State responsibility since it had established the threshold
required for circumstantial evidence. In particular, the International Court of
Justice had held that a “charge of such exceptional gravity against a State” –
and the charge laid by the applicant in the present case was one of such
gravity – would require a “degree of certainty” that had not been reached in
that case. Moreover, it had stated that (ibid., p. 18) “it [could not] be
concluded from the mere fact of the control exercised by a State over its
territory and waters, that that State necessarily knew, or ought to have
known, of any unlawful act perpetrated therein, nor yet that it necessarily
knew, or should have known, the authors. This fact by itself and apart from
other circumstances, neither involve[d] prima facie responsibility nor
shift[ed] the burden of proof”.
398. It was the Government’s firm position that the applicant had not
produced any prima facie evidence capable of establishing a direct or
indirect link between his rendition and detention under the CIA HVD
Programme and any act or omission on the part of the Romanian authorities.
They asserted that the applicant had not entered Romanian territory, had
not been held in a “secret” detention facility there and had never been
transferred to or removed from Romania. No action concerning his transfer
or detention had ever been taken jointly by the Romanian authorities and
other foreign authorities.
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179
This assertion, the Government added, was not meant to prevent the
Romanian investigating authorities from reaching a different conclusion on
the closure of the criminal investigation instituted in connection with the
applicant’s allegations if any new convincing evidence had subsequently
emerged. However, in the light of the evidence as it currently stood and the
domestic authorities’ findings so far, the applicant had never been on
Romania’s territory or under the jurisdiction of the Romanian authorities.
399. In the Government’s submission, the applicant’s account of the
facts amounted to mere suppositions because evidence presented by him
mostly consisted of various excerpts from media news, international reports
and non-governmental organisations’ allegations. In fact, the so-called
“sources” on which the applicant relied simply reiterated in different terms
the same information as the article published in The Washington Post in
November 2005. Such materials could not make up for the absence of
official documents confirming his claims.
In this connection, the Government also contested the credibility of the
2006 and 2007 Marty Reports, Mr Hammarberg’s findings and
memorandum, materials collected by Reprieve in the context of its rendition
research activities, and the CIA sources (see also paragraphs 430-435
below).
400. The Government did not dispute the existence of the HVD
Programme and the fact that the applicant had been subjected to secret
detention and ill-treatment under that programme. These were objectively
established factual elements proven by several international inquiries and
acknowledged by US officials. Nevertheless, in the present case there was
no evidence and not even a mere presumption of fact indicating that the
Romanian State had been an accessory to violations of human rights
occurring during the CIA’s rendition operations. Nor was there any direct or
indirect connection between the Romanian authorities and the HVD
Programme.
401. At the oral hearing, following the taking of evidence from experts
at the fact-finding hearing, the Government maintained their position. They
considered that the experts had found arguments supporting their theories
with surprising ease, without analysing contradictions and choosing from
previous reports or inquiries only the convenient elements. In the
Government’s view, no proof had yet emerged to confirm that the facts
complained of had occurred under Romania’s jurisdiction.
In that context, they underlined that the negative conclusion as to the
existence of suspicious flights or secret detention facilities in Romania had
been reached by the national authorities after an inquiry conducted in a
spirit of cooperation – cooperation that had not always been recognised by
the bodies conducting international investigations.
402. In sum, the so-called “evidence” in the case was ambiguous and
dubious and in reality constituted mere assumptions drawn from the
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fragmentation and interposition of various publicly accessible pieces of
information disseminated by the media.
Accordingly, the Government invited the Court to declare the application
inadmissible pursuant to Article 35 § 3(a) in conjunction with Article 1 of
the Convention.
2. The applicant
403. The applicant replied that the Government’s arguments were
without merit.
In his written submissions, he stated that Romania’s knowing and
intentional participation in the CIA’s operations and its failure to act on its
positive obligations had resulted in the applicant’s secret detention and ill-
treatment on Romanian territory. Citing the Ilascu and Others v. Moldova
and Russia judgment, the applicant stressed that “the acquiescence or
connivance of the authorities of a Contracting State in the acts of private
individuals which violate[d] the Convention rights of other individuals
within its jurisdiction” engaged the State’s responsibility under the
Convention. Also, under Article 1 of the Convention, in addition to its duty
to refrain from interfering with the enjoyment of the Convention rights and
freedoms, the Romanian State had positive obligations to take appropriate
steps to ensure respect for those rights and freedoms within its territory.
404. In the applicant’s view, he had established more than a prima facie
case that he had been detained and tortured in Romania under the CIA
secret detention and extraordinary rendition programme. The burden now
shifted to the Government to provide a “satisfactory and convincing
explanation” as to whether he had been detained and ill-treated.
405. Notwithstanding the wealth of evidence confirming that Romania
had hosted a secret CIA prison where he had been detained, the Romanian
Government had not only categorically denied that they had hosted a CIA
prison but also attempted to discredit findings issued by reputable officials
such as the Council of Europe’s Commissioner for Human Rights and
Senator Dick Marty, as well as evidence produced before the Court in
general.
406. In that regard, the applicant emphasised that, as confirmed in the
El-Masri judgment (cited above), while the Court generally applied the
“beyond reasonable doubt” standard of proof in assessing evidence, there
were no procedural barriers to the admissibility of evidence or
pre-determined formulae for its evaluation. The Court could rely on
evidence of any kind and make its free assessment.
For instance, in El-Masri, a case where the applicant had likewise been
subjected to rendition, secret detention and torture under the CIA HVD
Programme, the Court had considered a variety of evidential sources,
including the 2006 and 2007 Marty Reports, the 2007 Fava Report, a report
by the Council of Europe’s Commissioner for Human Rights, Wikileaks
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cables, reports of the ICRC and non-governmental organisations such as
Amnesty International and Human Rights Watch, and declassified CIA
documents. The Court had specifically referred to a “large amount of
indirect evidence” obtained during international inquiries, including aviation
and flight logs, among many other materials that had corroborated
Mr El-Masri’s claims. The Court had been satisfied that there had been
prima facie evidence in favour of the applicant’s version of events, that the
burden of proof should shift to the respondent Government, and that the
Government had failed to demonstrate conclusively why the evidence could
not corroborate the applicant’s allegations. It had ultimately found “the
applicant’s allegations sufficiently convincing and established beyond
reasonable doubt”. The Court had adopted the same approach in Al Nashiri
v. Poland.
407. The applicant considered that the Court’s findings of fact in
Al Nashiri v. Poland were valid in the present case. He referred to the
publicly available verbatim record of the fact-finding hearing in that case
and the testimony of Senator Marty and Mr J.G.S. who had stated that there
had been a secret CIA detention site in Bucharest. He further relied on the
documents that had become public after the delivery of the Al Nashiri
v. Poland judgment, in particular the 2014 US Senate Committee Report
and materials collected by the European Parliament in connection with its
LIBE Committee’s inquiry into allegations about the CIA secret detention
facility in Romania.
408. At the oral hearing, in response to the Government’s submissions
(see paragraphs 395-402 above), the applicant stated that, in the light of
evidence gathered in the case, it was established beyond reasonable doubt
that Romania had hosted a secret CIA prison from September 2003 to
November 2005 and that he had been secretly detained in that prison. The
2014 US Senate Committee Report and other documentary exhibits before
this Court, as well as cogent and credible expert testimony, confirmed these
facts.
The applicant’s torture and secret detention, together with his transfer
from Romania in the face of real risks of further torture and undisclosed
detention could be attributed to the Romanian State because these acts had
occurred on Romanian territory with the acquiescence and connivance of
the Romanian authorities and because Romania had failed to fulfil its
positive obligations to prevent these acts, despite being on notice that they
would occur.
409. In conclusion, the applicant asked the Court to reject the
Government’s preliminary objection.
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 the alleged lack of the respondent
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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 an 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 Romania 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 395-402 above).
The issue of the Romanian’s State responsibility under the Convention is
therefore inherently connected with the establishment of the facts of the
case and assessment of evidence. Consequently, in order to determine
whether the facts alleged by the applicant are capable of falling within the
jurisdiction of Romania under Article 1 of the Convention, the Court is
required first to establish, in the light of the evidence in its possession,
whether the events complained of indeed occurred on Romanian territory
and, if so, whether they are attributable to the Romanian State. The Court
will therefore rule on the Government’s objection in the light of its findings
regarding the facts of the case (see paragraphs 600-602 below).
B. Non-compliance with the rule of exhaustion of domestic remedies
and the six-month rule
411. 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
412. In the Government’s submission, the applicant had made only a
formal and superficial attempt to exhaust domestic remedies.
In their written pleadings they maintained that, pursuant to Article 222 of
the CCP, the applicant should first have applied to the domestic authorities
to obtain redress for a violation of his rights on account of the commission
of any alleged offences. In that connection, they drew the Court’s attention
to the fact that the applicant had lodged a criminal complaint on 29 May
2012 and merely two days later – on 1 June 2012 – had brought his
application to the Court.
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In the Government’s view, the applicant’s personal opinion that any
attempt to exhaust domestic remedies would have been futile because the
Romanian authorities had constantly denied the existence of “secret
detention facilities” had not entitled him to address his grievances directly
to the Court, thereby depriving Romania of the opportunity to pursue a
criminal investigation into his allegations. As demonstrated by a number of
examples from the Court’s judgments in Romanian cases, a criminal
complaint was an effective remedy for the purposes of Article 35 § 1 and
the Government saw no reason why it should not be effective in the
applicant’s case. Given the complexity of the case, he could not realistically
expect that his criminal complaint would immediately bring results.
413. At the oral hearing, the Government added that while in some cases
the passage of time from the date of lodging the application could make a
non-exhaustion objection obsolete, this was not so in the applicant’s case.
The criminal investigation in Romania was still pending and a number of
important actions had in the meantime been taken by the prosecution.
However, the applicant’s representatives had so far displayed no more than
a limited interest in the investigation. For two and a half years they had
taken no step to participate in the proceedings and when they had finally
had done so, they had asked only for information about the case-file
number.
In the circumstances, the application had been and remained premature.
(b) Non-compliance with the six-month term
414. The Government next argued that the applicant had also failed to
comply with the six-month rule in Article 35 § 1 of the Convention. If, as he
claimed, a criminal complaint that he had filed on 29 May 2012 had not
been an effective remedy for the purposes of this provision, according to the
Court’s case-law he should have lodged his application within six months
from the time when he had become aware of the fact that he had been
detained in Romania.
In their view, that time-limit had begun to run on 6 May 2011, the date
on which he had lodged his application with the Court against Poland. In
that application, based on the same documents as his application against
Romania, he had stated that after his detention in Poland “he [had been]
moved from Guantánamo Bay to Rabat and then to another CIA prison in
Bucharest, Romania, sometime after 27 March 2004”.
Accordingly, his present application, being submitted on 1 June 2012, i.e.
more than a year later, had been lodged out of time and should be rejected.
2. The applicant
415. The applicant asked the Court to dismiss the Government’s
objections.
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(a) Non-exhaustion of domestic remedies
416. As regards the exhaustion of domestic remedies, the applicant
stressed that the national authorities had been on notice of a CIA secret
prison on their territory at least since November 2005, when public records
of such a prison had first resurfaced. The prosecution had shown a complete
lack of interest in the matter. In addition, as set out in Mr Hammarberg’s
affidavit, they had ignored his repeated requests for an investigation to be
opened and had not responded to the dossier of evidence relating to the
secret CIA prison that he had submitted to the Romanian Prosecutor
General.
Viewed in the context of the Romanian authorities’ pattern and practice
of obfuscation and denial, it was apparent that the criminal investigation
was plainly ineffective. As such, there was no merit to the Romanian
Government’s claim that the application should be deemed inadmissible for
non-exhaustion of domestic remedies.
(b) Non-compliance with the six-month rule
417. The applicant acknowledged that it was true that in his application
against Poland he had summarily mentioned that he had been held in a
secret detention facility in Bucharest. But at that time the facts relating to
the precise location of the secret CIA prison in Romania and the treatment
of detainees held there was still unknown and, consequently, there had not
yet been sufficient information to file an application with the Court. Given
the complexity of the case and the nature of the alleged human rights
violations at stake, he was entitled to build an arguable case, which included
obtaining critical information as to the location of the detention facility. It
was not until 8 December 2011 that this location had become publicly
known and named via news report in The Independent that cited former US
intelligence officials familiar with the location. It had been the first time that
the location of the prison, i.e. the building used by the National Registry
Office for Classified Information, known as “ORNISS”, together with a
description of its interior and details of ill-treatment of prisoners held there
– including the applicant – had been publicly disclosed.
3. The Court’s assessment
418. The Court observes that the Government’s objections raise issues
concerning the effectiveness of the applicant’s criminal complaint and the
subsequent investigation into his allegations of torture and secret detention
on Romanian territory and are thus closely linked to his complaint under the
procedural limb of Article 3 of the Convention (see paragraph 3 above and
paragraphs 602-604 below). That being so, the Court is of the view that the
objections should be joined to the merits of that complaint and examined at
a later stage (see, mutatis mutandis, Al Nashiri v. Poland, cited above, § 343
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and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with
further references to the Court’s case-law).
II. THE COURT’S ESTABLISHMENT OF THE FACTS AND
ASSESSMENT OF EVIDENCE
A. The parties
1. The Government
419. As noted above in respect of the Government’s arguments as to
Romania’s lack of jurisdiction and responsibility under the Convention,
they denied on all accounts the applicant’s allegations as being unsupported
by any evidence and, consequently, having no factual basis. They also
challenged the credibility of most part of the evidence gathered in the case
and denied Romania’s knowledge of, and complicity in, the operation of the
CIA HVD Programme on its territory at the material time (see
paragraphs 395-402 above).
The Government’s conclusions on the facts and evidence were as
follows.
(a) Lack of evidence demonstrating that a CIA
Romania
420. First of all, the Government maintained that there had been no
evidence demonstrating that a CIA secret detention facility had ever existed
in Romania. They maintained that all the applicant’s allegations to that
effect were based on inconsistent and contradictory speculations.
(i) Contradictory statements as to the “life cycle” of the alleged CIA ”black
site” in Romania
421. The sources relied on by the applicant had given contradictory
indications regarding the period during which a “secret” detention facility
had allegedly operated in Romania. The 2007 Marty Report affirmed that
that facility had been opened in 2003 and had become highly important in
2004. It mentioned that it had been closed in November or December 2005
following the Washington Post’s revelations. This contradicted the media
sources indicating that the “secret prison” had been closed in the first part of
2006.
According to the article published in The Independent on 8 December
2011, secret detention centres in Romania had been closed by May 2006.
Reprieve had taken an approach differing from that of ABC News, stating
that the detainees had been moved out of identified European “secret”
locations prior to Secretary of State Condoleezza Rice’s visit to Romania on
5 December 2005. On the other hand, the Council of Europe’s
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Commissioner for Human Rights, in his dossier, had described the
“life-cycle” of the site as a “period of at least one year, beginning with its
opening on 22 September 2003”.
Accordingly, the reliability and veracity of information concerning the
period during which the alleged “secret” detention site had operated was
extremely doubtful.
(ii) Contradictory statements as to the location of the alleged CIA ”black site”
in Romania
422. As regards the location of the alleged CIA detention facility in
Romania, at first there had been suppositions that it might have been located
near Timișoara Airport, Mihail Kogălniceanu Airport or Băneasa Airport.
These locations had been mentioned in succession, each for several years.
The sources cited by the applicant had changed their assumptions each
time it had been established that no “secret” detention facility had ever
existed in the indicated place. Thus, a new location had subsequently been
discovered.
423. In 2007 the Romanian Senate, following on-site inspections of the
locations and after hearing witnesses, had established in its report that there
had been no “secret” detention site near Mihail Kogălniceanu Airport in
Constanţa, including the military airbase. Despite that fact, in 2011 some
journalists had come up with another hypothesis, indicating the basement of
the building used by the ORNISS, a public institution, as a secret prison. To
justify their speculations, they had not, however, supplied any solid
evidence, or even any credible indications.
424. In 2007 Senator Marty had seemed convinced, quoting “reliable
sources” within the CIA, that a secure area for the CIA transfers and
detentions had been created near Mihail Kogălniceanu Airport. In 2009, the
New York Times had quoted “officials” as saying that “one jail was a
renovated building on a busy street in Bucharest”. In 2011, other “reliable
sources” indicated the ORNISS building – which, the Government added,
was located in a residential area and not on a busy street – as the location of
the secret CIA detention site in Bucharest.
425. Lastly, in the pending criminal investigation there had so far
emerged no evidence that any location in Romania or, especially, in
Bucharest as suggested by the applicant’s sources, could have been used by
the CIA as a secret prison. In contrast, the prosecution had obtained a
statement from an official working for the ORNISS – which had been
produced before the Court – confirming that their building could never be,
and had never been, used as a detention facility.
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(b) Inconsistencies in the applicant
alleged rendition to and from Romania, and his secret detention in
Romania
426. The Government next argued that the applicant’s account regarding
the dates, circumstances and period of his alleged detention in Romania was
inconsistent and therefore unreliable.
In his application, the applicant had stated that he had been arrested in
2002 in Dubai. Then he had been held in Afghanistan and Thailand and
moved to Poland on 5 December 2002. On 6 June 2003 he had been moved
from Poland to Rabat, Morocco and, subsequently, on 22 September 2003
to Guantánamo Bay where he had been detained until 2004. On 27 March
2004 he had been transferred to Morocco and afterwards, to Romania. In
2006, the applicant had again been moved to Guantánamo Bay. Finally, he
alleged that he had been “secretly” detained on Romanian territory from
6 June 2003 until 6 September 2006.
427. Other sources advanced the idea that the applicant had been
transferred to Romania in September 2003 but then Reprieve had indicated
12 April 2004 as the date of his transfer to Romania. According to the 2007
Marty Report, the applicant had been brought to the CIA ”black site” in
Bucharest on the flight N313P on 23 September 2003. Mr Hammarberg, for
his part, had maintained that the opening of the CIA prison code-named
“Bright Light” and the start of the CIA operations at the Romanian “black
site” had been marked by the N313P flight on the night of 22 September
2003. However, in his opinion, the applicant had been transferred to
Romania on the N85VM flight directly from Guantánamo to Bucharest on
12 April 2004.
428. The Government emphasised that the applicant had indicated no
precise date of the flight on which he had allegedly been transferred out of
Romania. He only mentioned that he had remained in Romania until around
6 September 2006, when he had been moved to Guantánamo. Nor had the
experts heard at the fact-finding hearing been able to give a precise date for
his transfer out of Romania.
429. It was therefore clear that there was no conclusive evidence in
support of any of the above versions of the possible dates, circumstances or
period of the applicant’s alleged detention in Romania.
(c) Lack of credibility of evidence adduced by the applicant, in particular the
Marty 2006 and 2007 Reports, findings made by the Council of Europe
Commissioner for Human Rights in 2009-2012, Reprieve research and
CIA declassified documents
430. In the Government’s opinion, there was a particular circuit of
information concerning the alleged existence on Romanian territory of
“secret” detention facilities. To begin with, mass media had launched
accusations against certain States. Later on, this information had been
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reiterated as genuine by non-governmental organisations protecting human
rights. These organisations had presented as evidence data extracted from
records, invoices, and flight plans of planes allegedly used for transferring
detainees. At the same time, these organisations had deliberately ignored the
verifications performed by some European countries regarding the flights
allegedly connected to the rendition programme. As a consequence, the
information contained in official documents was not based on strong
evidence, but on the sum of the data given by the mass media based on
non-verifiable sources.
431. The Government contested the credibility of sources relied on by
Senator Marty in his reports of 2006 and 2007. They said that the Marty
Reports included many inconsistencies and contradictions. For instance,
even though the reports had stated that the materials analysed, i.e. satellite
photographs, aircraft movements and witness accounts, had not constituted
evidence in the formal sense of the term, the authors had nevertheless found
that these elements had been sufficiently serious to assume that a CIA secret
detention facility existed in Romania. In the Government’s opinion, Senator
Marty had displayed reluctance to reveal his alleged sources of evidence
and protected them under the plea of a strict policy of confidentiality.
Statements given by anonymous witnesses were not challengeable and this
impeded the Government in properly contesting their reliability and
defending themselves against the accusations made in the Marty Reports.
432. Referring to the 2007 Marty Report, the Government saw
inconsistencies in many respects. For instance, it was mentioned that the
evidence had been obtained through alleged discussions with “well-placed
persons from the Government and the intelligence services”. It was also
stated that information had been classified by the Americans into “tiny
pieces of information” in order to prevent any single foreign official from
seeing a “big picture”. But it was further said that only the highly placed
officials had been aware of the HVD Programme. In these circumstances,
those “well-placed persons” had been in no position to offer any
information.
The 2007 Marty Report spoke of the alleged “operating agreements”
between the CIA and Romania to hold detainees. However, in the next
paragraph Senator Marty had admitted that he had not seen the text of any
such agreement.
Furthermore, statements of Romanian politicians had been taken out of
context to support the report’s erroneous conclusions. Even a declaration of
the Romanian President had been distorted into a “formal approval” of the
agreement for the cooperation in the HVD Programme.
In sum, the 2007 Marty Report’s categorical conclusion that it “[had
been] finally established that secret detention centres [had] existed for some
years in Romania” seemed to have gone beyond the scant indications on
which it had been based.
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189
433. As regards Mr Hammarberg’s findings of 2009-2012, in particular
those referred to in his affidavit and included in the dossier prepared for the
Romanian Prosecutor General, the Government pointed out that they were –
like Senator Marty’s conclusions – based on newspaper articles and sources
that could not be verified. They were accordingly no more than
unsubstantiated allegations. Also, in the same fashion as other experts
before the Court, Mr Hammarberg had based his theories on selective
materials, without analysing the existing contradictions. For instance, he
had found support for his assertions as to the alleged use of the ORNISS
building by the CIA in the fact that in Poland a State facility had hosted a
secret detention site. This was concluded without having regard to obvious
differences between a remote location and a building used on a daily basis
by Government officials in a European capital.
434. Referring to Reprieve’s research and findings, the Government said
that this non-governmental organisation represented the interests of some of
the detainees held in Guantánamo and carried out a humanitarian project
concerning persons who had been subjected to extraordinary rendition in the
HVD Programme. Reprieve’s current case work involved representing
fifteen prisoners from Guantánamo, assisting over seventy prisoners facing
the death penalty around the world and conducting ongoing investigations
into the rendition and the secret detention of “ghost prisoners” in the so-
called “war on terror”. In these circumstances, Reprieve could not
objectively state the facts in their documents and respective articles.
435. Lastly, the Government pointed out that the reliability of the CIA
sources cited by the experts and various inquiries or media reports was open
to doubt because even the 2014 US Senate Committee Report concluded
that the CIA had leaked inaccurate information regarding the operation of
the HVD Programme.
(d) Lack of evidence demonstrating that certain planes landing in Romania
between 22 September 2003 and 5 November 2005 carried out the CIA
extraordinary rendition missions
436. The Government did not deny that several – allegedly “suspicious”
– planes had landed at and taken off from Romanian airports; these flights
had at least partly been documented by the 2007 Romanian Senate Report.
Also, publicly available evidence confirmed their stopovers on Romanian
soil. However, the impugned flights had been of a private and non-
commercial nature and had been treated accordingly. In all cases invoices,
air navigation service sheets or ground handling charge notes had been
issued for all the services provided. The flights had been included in the
control lists of the navigation records. The declassified annexes to the 2007
Romanian Senate Report supported the conclusion that the purpose of the
“N” flights’ stops at Băneasa Airport had been mainly technical in nature.
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For instance, as regards the alleged “rendition flight” N85VM of
12 April 2004, the available documents attested that the flight had been
recorded in the table containing handling fees and in the control list of
navigation records, that an invoice had been issued and that the payment
had been made by card; a copy of the air routing card having been attached
to the relevant documents.
437. Moreover, several witnesses who had worked in Băneasa Airport at
the material time and who had made statements in the investigation had
identified these flights as having had a technical stop for refuelling at the
airport. The vast majority of the witnesses had stated that the “N” flights
had been serviced by a civil handling agent as any normal flight. Even the
witnesses who had noted aspects that would suggest that the US flights had
gone through a different procedure had completed their declarations by
stating that they had not seen any persons disembarking from these aircraft.
It should be stressed that not all the witnesses had serviced the same flights
and that, therefore, their declarations should not be seen as contradictory.
438. In contrast to the circumstances surrounding the CIA planes’
landings as established by the Court in Al Nashiri v. Poland, in Romania
there had been no special procedure for receiving the impugned flights. As
the documents in the investigation file showed, all the “N” flights had gone
through the standard procedure. The procedure, as described in the
witnesses’ statements, had been entirely different from what had happened
in Szymany in Poland. No foreign vehicles had been seen entering the
premises of Băneasa Airport, there had been no military intervention in
order to secure the airport perimeter and, most certainly, US officials had
not assumed control of the airport on the dates in question. Nor had any
HVDs been seen entering the country, as witnesses quoted in the 2007
Marty Report had stated with regard to the aircraft landings in Szymany.
439. As regards the importance attached by the international inquiries,
media and experts heard by the Court to changes of flight plans, in the
Government’s view this by itself could not suggest any involvement of the
State in the applicant’s detention and ill-treatment.
The Government did not deny that the initial flight plans for the N313P
flight on 22 September 2003 and the N85VM flight on 12 April 2004
indicating Constanţa as their destination had been changed and the planes
had eventually landed at Băneasa Airport in Bucharest. Yet this could not be
a proof of any consistent practice of the so-called “dummy” flight planning
referred to in the Marty 2006 and 2007 Reports and the findings of the
Council of Europe’s Commissioner for Human Rights.
In accordance with the relevant domestic and international regulations,
every flight must have a flight plan, except for emergency issues. Each
flight plan must indicate, in addition to the plane’s destination, an
alternative destination. The flight plans had been established by the
aircraft’s operators. The only potential involvement of the authorities had
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191
been limited to their assistance in transmitting the flight plan to the entity
managing the integrated initial flight plan processing system. The decision
to use the alternative destination or a change in flight plan had been a
unilateral action by the flight operator. The acceptance of these changes in
the flight plans was not indicative of any complicity of the Romanian
authorities since such acceptance had in fact been automatic.
440. Similarly, the alleged STS/STATE indicators for the impugned
flights could not be considered meaningful, even though various reports had
emphasised their exceptional relevance. According to the applicable rules,
that indicator should not automatically qualify for an exemption from any
relevant flow regulations. Even Mr J.G.S. they added, although repeatedly
asked, could not indicate any special privileges that the STS/STATE
designation would entail.
(e) Lack of evidence demonstrating that the Romanian authorities entered
into
execution of the HVD Programme
441. In the Government’s submission, the allegations regarding
Romanian’s complicity in the HVD Programme, in particular by means of
“secret cooperation agreements” were completely baseless. No such
agreements existed.
In that context, the Government referred to the Romanian high-office
holders’ statements, in particular those made by former President of
Romania, Ion Iliescu and his former security adviser, Ioan Talpeş in Der
Spiegel in 2014 and 2015. Both of them had said that specific agreements
had been concluded with the American authorities after 11 September 2001,
including the Romanian support at the level of intelligence services – which
had actually been very fruitful. This did not mean cooperation in running a
secret prison. Furthermore, in the course of the criminal investigation their
initially ambiguous statements had later been clarified to the effect that
there had been no cooperation and no complicity in the CIA rendition and
secret detention operations on the part of Romania.
(f) Lack of evidence demonstrating that the Romanian high-office holders
agreed to the running of a secret detention facility by the CIA on
Romanian territory, provided premises and knew of the purposes of the
impugned flights
442. Nor could it be said that the Romanian authorities had otherwise
agreed – explicitly or implicitly – to the running of a secret detention
facility by the CIA in Romania and that they had made available to them
premises for that purpose. These were simply groundless assumptions
unsupported by any evidence.
Referring again to the statements of Mr Iliescu and Mr Talpeş statements
in Der Spiegel, the Government stressed that they had both clearly
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confirmed that they had had no knowledge of any CIA-run detention facility
on Romanian territory.
(g) Lack of evidence of Romania
the material time
443. No evidence had been produced to show the slightest degree of
knowledge on the part of the Romanian authorities as to the alleged hidden
purpose of the flights landing at and taking off from Romanian airports.
As attested by Mr J.G.S. at the fact-finding hearing, only at the beginning
of November 2005 had there emerged the first information about the alleged
existence in some “Eastern European countries” of secret detention facilities
designated for suspected terrorists and run by the CIA. Before that time the
only information available had concerned the detention facilities in
Guantánamo Bay, Afghanistan, Egypt or Jordan and a specific case
concerning the surrender of six Algerian men by Bosnian Federal Police
into US custody. While information on the setting-up of military
commissions for trying persons accused of terrorist acts had been in the
public domain, the identities of those persons had been unknown. Nor had it
been known what the US authorities’ decision would be as to which of them
would actually be tried before military commissions rather than before
federal courts.
In sum, at the relevant time, from 2003 to 2005, there had been no
information that would have allowed the European States to suspect that
some of the US flights that had landed in Europe had been used for the
transfer of prisoners.
2. The applicant
444. The applicant maintained that the international inquiries, the CIA
declassified documents, the 2014 US Senate Committee Report, other
abundant materials compiling most recent research on the operation of the
HVD Programme and expert testimony obtained by the Court provided a
wealth of compelling evidence supporting his allegations and rejecting the
Government’s arguments as utterly untenable.
In his view, it was established beyond reasonable doubt that Romania
had hosted a secret CIA prison in 2003-2005 and that he had been detained
in that prison.
(a) As regards the existence of a CIA secret detention facility in Romania and
the applicant
445. The 2014 US Senate Committee Report and other documentary
exhibits before the Court, as well as cogent and credible expert testimony
confirmed that the CIA detention site code-named “Bright Light” or
“Detention Site Black” had been located in Romania. The fact that a CIA
secret prison had been located in Romania had already been confirmed in
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193
the 2007 Marty Report. In the Al Nashiri v. Poland judgment the Court had
quoted verbatim from the expert testimony of Senator Marty and Mr J.G.S.
stating that there had been a secret CIA detention site in Bucharest.
446. As regards evidence that had emerged after the above judgment, the
applicant attached particular importance to the 2014 US Senate Committee
Report, adding that it fully confirmed the Court’s factual findings in
Al Nashiri v. Poland, including those based on expert testimony and
documentary evidence.
Although the report did not refer to Romania by name, it was established
that publicly available information, when cross-referenced with references
to Detention Site Black confirmed that this site was “Bright Light”, a secret
CIA prison that had operated in Bucharest in 2003-2005. For example, the
2014 US Senate Committee Report stated that detainees had begun arriving
at Detention Site Black “in the fall of 2003”. It also stated that after
publication on 2 November 2005 of the Washington Post article by
Dana Priest disclosing that Eastern European countries had hosted CIA
“black sites”, the country concerned had demanded the closure of Detention
Site Black within hours and that the CIA had transferred the remaining CIA
detainees out of the facility shortly thereafter.
447. Furthermore, the 2015 LIBE Briefing stated that it had been
established beyond reasonable doubt that the CIA had used a facility in
Romania to hold prisoners, that the first of them had been transferred to this
facility on 22 September 2003 and that the last ones had been transferred
out of the facility in November 2005.
448. Lastly, the applicant relied on expert testimony at the fact-finding
hearing. Senator Marty had stated that there had been no shadow of doubt
that Romania had participated in the CIA programme. Mr J.G.S. had
testified that with the exception of the “black site” in Afghanistan, the
Romanian “black site” had operated for the longest period and held more
detainees than any other CIA “black site”. Mr J.G.S. and Mr Black had
confirmed that the applicant had been secretly detained in Romania. They
had also confirmed that the wealth of details about “Detention Site Black”
in the 2014 US Senate Committee Report all corresponded to details about
the Bucharest prison that the CIA code-named “Bright Light”, where the
applicant had been detained. As such, the report by itself, offered by no less
than the United States’ own Senate Intelligence Committee, based on
exhaustive review of US Government documents, rendered untenable the
Romanian Government’s claim that there was no evidence of a CIA prison
on Romanian territory.
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(b) As regards the alleged inconsistencies in the applicant
the dates of his rendition to and from Romania and his secret detention in
Romania
449. In response to the Government’s arguments (see paragraphs 426-429
above), the applicant said that contrary to their assertions the application
had not stated that he had been detained in Romania for the entire period
between 6 June 2003 and 6 September 2006. Rather, it stated that he had
been detained in Romania for some time during that period. Moreover, after
the subsequent disclosure of the dossier submitted by Thomas Hammarberg,
the precise date on which the applicant was transferred to a CIA “black site”
in Romania had become clear – it had been 12 April 2004, on flight N85VM
from Guantánamo Bay to Bucharest.
450. The applicant further emphasised that, as regards the location of the
secret prison, it had become known only on 8 December 2011 when a news
report had identified for the first time the precise location of the CIA prison
in Romania, while at the same time confirming the applicant’s detention
there, and providing details of the ill-treatment of detainees. The report had
cited US intelligence officials familiar with the location and inner working
of the prison.
(c) As regards the planes landing in Romania between 22 September 2003 and
5 November 2005
451. The applicant maintained that it had been established beyond
reasonable doubt that planes associated with the CIA rendition operations
had landed and taken off from Romania at the material time. The annex to
the 2007 Romanian Senate Report listed forty-three flights that had been
considered suspicious by the Romanian authorities.
452. The Fava Report had “[e]xpresse[d] serious concern about the
21 stopovers made by CIA-operated aircraft at Romanian airports” which on
many occasions had come from or had been bound for countries linked with
extraordinary rendition circuits and the transfer of detainees. The list of
rendition planes included flight N85VM of 12 April 2004 on which the
applicant had been transferred to and from Romania.
The Fava Report further noted that a flight with registration number
N478GS had suffered an accident on 6 December 2004 when landing in
Bucharest. The aircraft had reportedly taken off from Bagram Air Base in
Afghanistan, and its seven passengers had disappeared following the
accident. The report expressed deep concern “that Romanian authorities
[had] not initiate[d] an official investigation process ... into the case of a
passenger on the aircraft Gulfstream N478G5, who [had been] found
carrying a Beretta 9 mm Parabellum pistol with ammunition”.
453. Furthermore, the applicant pointed out that the international
inquiries and the experts heard by the Court had identified the rendition
flights on which he had been transferred to and from Romania.
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195
The finding in Mr Hammarberg’s dossier for the Romanian Prosecutor
General that the applicant had been transferred to Romania on 12 April
2004 on board N85VM, a flight clearly and consistently associated with the
rendition operations, had been confirmed by multiple reliable sources,
including the 2014 US Senate Committee Report and the reconstruction by
those experts of the applicant’s transfers in CIA custody.
454. As regards his possible transfer from Romania, the experts had
given two dates, agreeing on the most probable date, which constituted
sufficient evidence.
(d) As regards the Government
of information and evidence
455. The applicant submitted that the Government’s arguments
contesting the evidential value of the material before the Court should be
rejected in their entirety.
In his view, the Government’s submissions simply constituted an attempt
to discredit the findings of reputable officials like the Council of Europe’s
Commissioner for Human Rights and Senator Dick Marty, by arguing that
these findings were based solely on newspaper articles. In doing so, they
failed to take into account the fact that Mr Hammarberg and Senator Marty
had engaged in independent investigations and analysis of their own.
Indeed, Commissioner Hammarberg’s dossier for the Romanian
Prosecutor General had expressly drawn on the “original investigation and
the analysis undertaken by [his] Office during the six of years of [his]
mandate as Commissioner, among other sources of information”. Similarly,
the 2007 Marty Report had engaged in “analysis of thousands of
international flight records – and a network of sources established in
numerous countries”.
Further, as regards the statement in the 2007 Marty Report that Romania
had entered into a bilateral agreement with the US authorities, the applicant
pointed out that, contrary to the Government’s assertion, the fact that
Senator Marty had not seen the actual document did not undermine the
credibility of his claim that such an agreement had in fact existed, because
its existence had been verified by credible sources, some of whom had been
directly involved in negotiations that had led to this agreement. The fact that
such an agreement had been brokered had recently been corroborated by the
2014 US Senate Committee Report.
(e) As regards Romania
HVD Programme
456. For the applicant, there was no doubt that the Romanian authorities
had cooperated with the CIA in the HVD Programme. They had granted
licences and overflight permissions to facilitate the CIA rendition flights.
The AACR’s officials had collaborated with Jeppesen (and, by extension,
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with Jeppesen’s client, the CIA) by accepting the task of navigating
disguised flights into Romanian airports.
457. As set forth in the 2007 Marty Report, Romania had entered into a
bilateral agreement with the United States. The report had named individual
office-holders who had known about, authorised and stood accountable for
Romania’s role in the CIA’s operation of secret detention facilities on
Romanian territory from 2003 to 2005 as follows: the former President of
Romania (up to 20 December 2004), Ion Iliescu; the then President of
Romania (20 December 2004 onwards), Traian Băsescu; the Presidential
Advisor on National Security (until 20 December 2004). Ioan Talpeş; the
Minister of National Defence (ministerial oversight up to 20 December
2004), Ioan Mircea Pascu; and the Head of the Directorate for Military
Intelligence, Sergiu Tudor Medar.
458. Romania had therefore participated in the applicant’s ill-treatment
and incommunicado detention by entering into that agreement and giving
the US the “full extent of permissions and protections it sought” for
conducting secret detention and rendition operations on Romanian territory;
issuing an order to Romanian military intelligence services on behalf of the
President to provide the CIA with all the facilities they had required and to
protect their operations in whichever way they had requested; providing the
use of a Romanian Government building for hosting the secret prison where
Al Nashiri had been detained; actively assisting the landing, departures and
stopovers of secret CIA rendition flights including flights which had
transported Al Nashiri in and out of Romania; and failing to disclose the
truth and effectively investigate the existence of a secret CIA prison and
rendition flights in Romania.
459. Consequently, the applicant’s torture and secret detention, as well
as his transfer from Romania in the face of real risks of further torture,
secret detention and the death penalty could be attributed to the Romanian
State because these acts had occurred on Romanian territory with the
acquiescence and connivance of the Romanian authorities and because
Romania had failed to fulfil its positive obligations to prevent these acts,
despite being on notice that they would occur.
460. Lastly, citing Al Nashiri v. Poland the applicant emphasised that in
that case the Court had found that CIA rendition operations had “largely
depended on 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, last but not least, premises on which
the prisoners could be securely detained and interrogated” and that “the
cooperation and various forms of assistance of those authorities, such as for
instance customising the premises for the CIA’s needs, ensuring security
and providing the logistics [had been] the necessary condition for the
effective operation of the CIA secret detention facilities”. This was true with
respect to Romania. Just as the Court had found it inconceivable that Poland
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197
had not known about the secret detention of prisoners on its territory, it was
simply inconceivable that Romania had not known that it had been hosting a
secret prison.
(f) As regards Romania
time
461. The
applicant
contended
that
Romania
had
knowingly,
intentionally, and actively collaborated and colluded with the CIA’s
extraordinary rendition programme, thereby enabling the CIA to subject him
to secret detention and ill-treatment in Romania.
462. The Romanian authorities should have known that high-value
detainees would be tortured and ill-treated. Their close degree of
cooperation with the CIA’s secret detention operations in Romania must
have put Romanian authorities on notice of the prisoners being at risk of
secret detention and ill-treatment.
In addition, Romania had had notice of the secret detention, torture and
mistreatment of prisoners because of international and Romanian news
reports, reports of the UN and human rights organisations and European
legal cases that had documented US mistreatment of detainees suspected of
terrorism at the material time. The Romanian Government were also
presumed to have known of the CIA’s secret detention, torture, and ill-
treatment of terrorism suspects through its diplomatic missions.
463. As the 2007 Marty Report had concluded, Romania had been
“knowingly complicit in the CIA’s secret detention programme” and senior
Romanian officials had “[known] about, authorised, and [stood] accountable
for Romania’s role” in the CIA’s secret detention and rendition operations
on Romanian territory”.
464. Furthermore, the 2014 US Senate Committee Report had confirmed
that the Romanian authorities had known that they had been hosting a secret
prison and had attempted to cover up this fact. Indeed, the report observed
that the Romanian authorities had “entered into an agreement” in 2002 with
the US to host the prison, and that the US had paid the Romanian authorities
“millions of dollars to host the prison”. It also confirmed that within hours
of The Washington Post reporting in November 2005 that Eastern European
countries had hosted secret CIA prisons, the Romanian authorities had
insisted on closing the CIA prison on their territory.
465. In the applicant’s submission, the evidence before the Court
demonstrated that it was the Romanian authorities which had given the CIA
permission to run a secret prison in Bucharest, it was the Romanian
authorities who had given the CIA permission to use dummy flight plans to
secretly land rendition planes carrying prisoners in and out of the country,
and it was Romanian authorities who had given the CIA extraordinary
security cover for their operations in Romania.
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As expert J.G.S had said at the fact-finding hearing: “it [was] quite clear
that the Romanian authorities not only should have known but did know of
the nature and purpose of the CIA’s secret operations on their territory”. He
had also testified that this level of cooperation had depended on
authorisation by the highest levels in the Romanian Government. The 2014
US Senate Committee Report had confirmed this. Mr J.G.S and Mr Black
had testified that the Romanian authorities had known the nature and
purpose of the CIA activities on Romanian territory because the CIA had
paid Romania millions of dollars as a subsidy to host the prisoners.
Moreover, the 2014 US Senate Committee Report had also established that
it had been at the insistence of the Romanian Government that Detention
Site Black had been ultimately closed. The Romanian Government had
demanded closure of the CIA prison within hours from the publication of
the November 2005 Washington Post article disclosing that CIA “black
sites” had existed in Eastern Europe. This clearly confirmed that for as long
as the CIA prison had existed on Romanian territory, it had been there with
the Romanian Government’s consent.
466. The applicant referred to the Court’s finding in Al Nashiri
v. Poland (cited above) that by June 2003 it was widely known that the US
rendition programme had involved secret detention in overseas locations. It
stood to reason that Romania, which had hosted a secret CIA prison after
Poland and had enabled the applicant’s transfers from its territory well after
June 2003, indeed in 2005, had known by then that there had been
substantial grounds for believing that the applicant had faced all of these
risks.
467. As regards the statements of Mr Iliescu’s and Mr Talpeş, the
applicant maintained that the Government’s submission was yet another
example of their consistent refusal to acknowledge the truth about their
hosting of a secret CIA prison on Romanian territory. In particular, the
Government had quoted selectively from the statement of witness Z,
denying that Romania had hosted a secret CIA prison. But a closer look at
that statement revealed that Z had actually admitted that the Romanian
authorities had supplied a “location” to the CIA.
468. In this connection, the applicant further referred to testimony given
by witnesses X, Y and Z, saying that their statements expressly conceded
that CIA flights had landed in Bucharest. In particular, X had said that
Romania had partnership relations with similar institutions from other
States, including equivalent structures in the United States of America. He
also stated that in the framework of these bilateral relations, civil aircraft
hired by the partner services on which their representatives travelled had
landed at Bucharest Băneasa Airport. Witness Z had confirmed that US
government officials had asked the Romanian authorities to provide some
locations on Romania’s territory for the deployment of actions meant to
fight the dangers of international terrorism and which were to be used by the
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199
CIA and that the authorities had “offer[ed] a location for CIA activities”‘. In
his September 2013 statement Z had acknowledged that there had been
“concrete agreements” that had made possible the operation of the special
US flights in Romania and that those flights had not been “under any
obligation to obey usual rules imposed on civil flights”.
Moreover, Y testified that, in the context of Romania’s strategic
objective of “NATO and European Union integration”, it had been possible
that CIA offices had been run on Romanian territory.
469. Lastly, the applicant reiterated that all the experts heard by the
Court at the fact-finding hearing had stated, in unambiguous terms, that
Romania not only ought to have known but must have known and had
known of the nature and the purpose of the CIA’s secret operations
occurring on its territory.
B. Joint submissions by Amnesty International (AI) and the
International Commission of Jurists (ICJ) on public knowledge of
the US practices in respect of captured terrorist suspects
470. Referring to any knowledge of the US authorities’ practices in
respect of suspected terrorist attributable to any Contracting State to the
Convention at the relevant time, AI/ICJ pointed to, among other things, to
the following facts that had been a matter of public knowledge.
471. The interveners first emphasised that they had shown in their
submissions in El-Masri and Al Nashiri v. Poland (both cited above) that, at
least by June 2003, there had been substantial credible evidence in the
public domain that in the context of what the USA called the global “war on
terror”, US forces had been engaging in enforced disappearances, secret
detentions, arbitrary detentions, secret detainee transfers, and torture or
other ill-treatment. Further, the submissions showed that, by presidential
military order, the USA had established military commissions – executive
tribunals with the power to hand down death sentences – for the prosecution
of selected non-US nationals accused of involvement in terrorism in
proceedings that would not comply with international fair trial standards.
472. 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 “high value detainees” had been held for
months in a facility at Baghdad International Airport in conditions that
violated international law.
473. In its annual reports covering the years 2004 and 2005, distributed
widely to governments and the media, AI had reported on the growing body
of evidence of human rights violations committed by US forces in the
counter- terrorism context and stated that these violations, including secret
detention and rendition, were continuing. In addition to individual country
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entries, the global overview pages of both reports addressed US abuses in
the “war on terror”. For example, in the report covering 2005 this overview
showed how during the year, it had become “increasingly clear how many
countries had colluded or participated in supporting US abusive policies and
practices in the ‘war on terror’, including torture, ill-treatment secret and
unlimited detentions, and unlawful cross-border transfers”.
474. In June 2004 The Washington Post published a leaked 1 August
2002 memorandum written in the US Department of Justice’s Office of
Legal Counsel at the request of the CIA. The memo advised, inter alia, that
“under the circumstances of the current war against al Qaeda and its allies”,
presidential authority could override the US anti-torture law, that even if an
interrogation method did violate that law “necessity or self-defense could
provide justifications that would eliminate any criminal liability”, and that
there was a “significant range of acts” that, while constituting cruel,
inhuman or degrading treatment or punishment, “fail to rise to the level of
torture” and need not be criminalised.
475. In October 2004 AI published a 200-page long analysis of US
violations in the “war on terror” and of the US Government documents that
had come into the public domain, and including case details of secret
transfers of detainees, the alleged existence of secret detention facilities and
torture and other ill treatment.
476. In May 2005, AI published a 150-page long report on US abuses in
the “war on terror”, which included cases of alleged torture or other
ill-treatment, deaths in custody, military commission proceedings, rendition
flights, and the cases of “high-value detainees” allegedly held in CIA
custody in secret locations in Afghanistan and elsewhere and being
subjected to enforced disappearance. The cases described included those of
Tanzanian national Ahmed Khalfan Ghailani and German national Khaled
El-Masri.
477. In sum, as the Court held in Al Nashiri v. Poland (cited above),
already by June 2003 it had been clear that States had known or should have
known about the USA’s rendition and secret detention programme and
about the grave human rights violations it entailed as well as allegations of
torture and other ill-treatment by US personnel, the indefinite detention
regime at Guantánamo and the prospect of unfair trials by the military
commission. As detailed above, the body of evidence regarding the USA’s
rendition and secret detention programme had only grown between June
2003 and September 2006. The USA’s use of the death penalty remained
well-known during this period and the US administration pursued the death
penalty from 2002 to 2006 in the high-profile federal prosecution of
Zacarias Moussaoui for terrorism offences, as well as moving ahead with a
military commission system with the power to hand down death sentences.
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201
C. The parties
478. The parties expressed opposing views on the issues concerning the
standard and burden of proof to be applied in the present case.
1. The Government
479. The Government once again reiterated that there was no conclusive
evidence that the Romanian authorities had in any way participated in the
CIA rendition programme by hosting a secret prison for high-value
detainees or by any other means.
They agreed with the applicant (see paragraph 488 below) that the Court
had accepted that in its establishment of facts and assessment of evidence
the co-existence of sufficiently strong, clear and coherent inferences might
be considered a proof. Yet in the applicant’s case no such inferences
existed.
480. In the Government’s view, the applicant had adopted a strategy of
persuading the Court that the Romanian authorities, including the
intelligence services and army, had shared the responsibility for gross
violations of human rights during the so-called “rendition programme”
based on the idea of, in his view, striking similarities between the present
case and El-Masri (cited above).
However, in order for the Court to shift the burden of proof, the applicant
was required to establish a prima facie case in favour of his version of
events. In the El-Masri case, that applicant’s presence on Macedonian
territory at the material time had not been disputed. His detention and
interrogation in “the former Yugoslav Republic of Macedonia”, together
with his surrender to the US authorities, had not been refuted either. In
contrast, in the instant case no detention facility had been established with
certainty, there was no certainty as to the flights on which the applicant had
allegedly been transferred to and from Romania, and the exact period of the
applicant’s alleged detention in Romania had remained unclear.
481. Furthermore, Mr El-Masri’s description of the circumstances of his
detention and torture had been, as the Court held, “very detailed, specific
and consistent”. Conversely, in the present case the Court was confronted
with the applicant’s incoherent allegations.
As opposed to El-Masri, where a significant amount of evidence had
corroborated the applicant’s allegations and had given rise to concordant
inferences, in the present case no evidence had been put forward, save for
the reports which relied on one another. It was true that the Court had held
in the El-Masri judgment that it might examine a case by “drawing
inferences from the available material and the authorities’ conduct” and had
concluded that the applicant had prevailed in his claims. Yet in the instant
case there was no such material and the authorities’ conduct had been, if not
beyond any criticism, proactive and had demonstrated good faith. Without
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AL NASHIRI v. ROMANIA JUDGMENT
any intention to attack and discredit the reports of reputable officials or non-
governmental organisations, the Government insisted that the truth emerged
at the end of a process of gathering evidence, failing which all the
allegations remained simple claims.
482. The Government further said that they were fully aware of the
Court’s standards of proof in cases involving injuries, death or
disappearances that occurred in detention in an area within the exclusive
control of the authorities of the respondent State, if there was prima facie
evidence that the State might be involved. Nevertheless, they contended that
a serious explanation, even if not a final one, had already been provided by
the Romanian authorities since a serious and independent investigation was
still pending before the national authorities.
483. In view of the foregoing, the Government invited the Court to hold
that there was no prima facie evidence in favour of the applicant’s version
of events and that, therefore, the burden of proof could not be shifted.
They added, however, that they could not give a final version of the facts
since the domestic investigation had not yet been completed.
2. The applicant
484. The applicant maintained that he had adduced strong, clear and
concordant facts in support of his claims. In contrast, the Romanian
Government had continued to cover up the truth. The Government had an
unprecedented advantage over the applicant. They had all the relevant facts
in their possession because they had entered into an agreement to host the
secret CIA prison, because they had operationalised that agreement, and
because they had covered it all up. In contrast, the applicant, still detained at
the remote location of Guantánamo Bay, was gagged from speaking of his
treatment in Romania.
485. The applicant reiterated that he had established more than a prima
facie case that he had been detained and tortured in Romania under the
HVD Programme (see paragraphs 404-405 above). According to the Court’s
case-law, the burden of proof now shifted to Romania, particularly because
Romania had “exclusive access to information” and witnesses who could
corroborate or refute the applicant’s case. However, the Government had
failed to provide any such explanation; instead, they engaged in a pattern
and practice of obfuscation and denial with respect to the events complained
of. They had done so in the context of unprecedented secrecy maintained by
the United States and its partner governments with respect to secret
detention and extraordinary rendition operations.
486. Where, as in the present case, the events at issue lay wholly or in
large part within the exclusive knowledge of the authorities, the burden of
proof could be regarded as resting on the authorities to provide a
satisfactory and convincing explanation. Where, as in this case, the
authorities had failed to provide a convincing explanation and failed to
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203
conduct an effective investigation, despite being on notice, at least since
November 2005, of the fact that Romania had hosted a secret CIA prison,
the Court was entitled to draw inferences adverse to the authorities.
487. The applicant emphasised that the Court had consistently applied
these principles in cases involving injuries, death or disappearances that
occurred in detention, including cases where, as here, the Government
denied that the individual had been in Government custody at the time of
the events at issue. It had also applied these principles where persons had
been found dead or injured, or had disappeared, in an area within the
exclusive control of the authorities of the State and there had been prima
facie evidence that the State might be involved. As the Grand Chamber
reiterated in El-Masri, prima facie evidence could itself be provided by
proof in the form of concordant inferences, based on which the burden of
proof was shifted to the respondent Government.
488. Furthermore, in Al Nashiri v. Poland (cited above) the Court had
established that it was appropriate to adopt a flexible approach towards the
evaluation of evidence. The Court had observed that although it had adopted
the “beyond reasonable doubt” standard of proof, it also “adopt[ed] the
conclusions that [were], in its view, supported by the free evaluation of all
evidence, including such inferences as [might] flow from the facts and the
parties submissions”. Proof could thus “follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact”. In addition, in assessing the evidence, the Court had
also taken note of the unique set of constraints on the applicant which had
precluded him from testifying about his detention before the Court and of
“the very nature and extreme secrecy of the CIA operations in the course of
the ‘war on terror’”.
489. The applicant argued that the same constraints applied in his case
against Romania. Indeed, he had been virtually isolated in Guantánamo and
unable to talk publicly about his torture and ill-treatment or even submit a
statement to the Court because the US authorities had taken the position that
his thoughts and memories about his experiences under torture were
classified information. Accordingly, they had prohibited him from sharing
these experiences with anyone other than his US lawyers, who were
prevented from revealing what they had been told by their client on pain of
criminal sanction.
Despite the extreme secrecy associated with CIA operations and his
inability to address the Court directly, the applicant considered that he had
submitted ample evidence in support of his factual claims. Indeed, the
documentary and expert evidence offered by him and heard by the Court in
the present case was, in his view, akin to the evidence that had been given
credence by the Court in Al Nashiri v. Poland.
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D. The Court
1. Applicable principles deriving from the Court’s case-law
490. 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, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December
2012; El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above,
§ 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393).
Nonetheless, in cases where there are conflicting accounts of events, the
Court’s examination necessarily involves the task of establishing facts on
which the parties disagree. In such situations the Court is inevitably
confronted when establishing the facts with the same difficulties as those
faced by any first-instance court (see El-Masri, cited above, § 151; and
Imakayeva, cited above, §§ 111-112).
491. 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.
Its role is not to rule on criminal guilt or civil liability but on Contracting
States’ responsibility 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; El-Masri, cited above, § 151; Georgia v. Russia (I) [GC],
no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited
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205
above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and
Nasr and Ghali, cited above, § 119).
492. 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, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 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).
493. 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],
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 establishment of the facts
and assessment of evidence in the present case
494. 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
paragraph 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 v. Moldova and Russia [GC], no. 48787/99, §§ 188-211,
ECHR 2004-VII).
495. The regime applied to high-value detainees such as the applicant is
described in detail in the CIA declassified documents, the 2014 US Senate
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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 incommunicado
in continuous solitary confinement 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 48-58, 85 and 293 above).
496. As held in Al Nashiri v. Poland (cited above, § 399) and as can be
seen from the material cited above (see paragraphs 98-140 above), since an
unknown date in mid-October 2002 the applicant has not had contact with
the outside world, save the ICRC team in October and December 2006, the
military commission’s members and his US counsel. It has also been
submitted that the applicant’s communications with the outside world are
virtually non-existent and that his communications with his US counsel and
his account of experiences in CIA custody are presumptively classified (see
paragraph 482 above).
497. The above difficulties involved in gathering and producing
evidence in the present case caused by the restrictions on the applicant’s
contact with the outside world and the extreme secrecy surrounding the
US rendition operations have inevitably had an impact on his ability to
plead his case before this 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.
Consequently, 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 Al Nashiri v. Poland, cited above, § 400, and Husayn (Abu
Zubaydah) v. Poland, cited above, § 400).
498. It is also to be noted that while the Government have firmly denied
the applicant’s allegations in so far as they concerned Romania and
contested the credibility of various parts of the evidence before the Court,
they have not disputed the fact that he was subjected to secret detention and
ill-treatment under the HVD Programme. Nor have they disputed his
version of the circumstances preceding his alleged rendition to Romania on
12 April 2004 (see paragraphs 395-402 and 419-443 above).
However, the facts complained of in the present case are part of a chain
of events lasting from mid-October 2002 to 5 September 2006 and
concerning various countries. The examination of the case necessarily
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207
involves the establishment of links between the dates and periods relevant to
the applicant’s detention and a sequence of alleged rendition flights to the
countries concerned. As a result, the Court’s establishment of the facts and
assessment of evidence cannot be limited to the events that according to the
applicant allegedly took place in Romania but must, in so far as it is
necessary and relevant for the findings in the present case, take into account
the circumstances occurring before and after his alleged detention in
Romania (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 Romania
(mid-October 2002-April 2004)
(a) Period from mid-October 2002 to 6 June 2003
499. The Court has already established beyond reasonable doubt the
facts concerning the applicant’s capture, rendition and secret detention until
6 June 2003, the date of his rendition on plane N379P from Poland to
another CIA secret detention facility (see Al Nashiri v. Poland , cited above,
§§ 401-417). The relevant passages from Al Nashiri v. Poland containing
the Court’s findings of fact are cited above (see paragraph 98 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 99-101 above).
(b) Whether the applicant
transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an
unspecified two-digit date in April 2004 (transfer out of Guantánamo)
were proved before the Court
500. It is alleged that before being rendered by the CIA on 12 April
2004 from Guantánamo to Romania on board N85VM the applicant had
been detained in other CIA secret detention facilities abroad (see
paragraphs 115-116 above).
501. In Al Nashiri v. Poland (cited above, §§ 408 and 417) the Court
held as follows:
“408. In the light of that accumulated evidence, there can be no doubt that:
...
2) the N379P, also known as “Guantánamo Express”, a Gulfstream V with capacity
for eighteen passengers but usually configured for eight, arrived in Szymany on
5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two
hours and then departed for Rabat, Morocco.
...
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AL NASHIRI v. ROMANIA JUDGMENT
417. Assessing all the above facts and evidence as a whole, the Court finds it
established beyond reasonable doubt that:
...
4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA
rendition aircraft N379P.”
502. Referring to this point in time, the 2014 US Senate Committee
Report states that from June 2003 onwards “the CIA transferred Al Nashiri
to five different CIA detention facilities before he was transferred to US
military custody on 5 September 2006” (see paragraph 102 above). It further
states that in 2003 the CIA arranged for a “temporary patch”, which meant
placing the applicant and another detainee – Ramzi bin al-Shibh – in a
country whose name was redacted and that by an unspecified – redacted –
date in 2003 both of them were transferred out of that country to
Guantánamo (see paragraph 109 above).
There can therefore be no doubt that between his transfer from Poland on
6 June 2003 and his transfer to Guantánamo on an unspecified later date in
2003 the applicant was for some time held by the CIA in another country –
the first one out of five in which he would be secretly detained between
6 June 2003 and 5 September 2006.
503. Mr J.G.S. testified that the country in question was identifiable as
Morocco and that on 6 June 2003 the plane N379P had taken the applicant
and Ramzi bin al-Shibh from Poland to Rabat, Morocco to a facility that at
that time had been let to the CIA by their Moroccan counterparts. He stated
that the applicant had remained there until 23 September 2003, the date on
which he had been transported on plane N313P from Rabat to Guantánamo
(see paragraphs 107-108 and 110 above).
504. The N313P rendition circuit of 20-24 September 2003 was
analysed in detail in Husayn (Abu Zubaydah) v. Poland, where 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 flew from Rabat to Guantánamo on the night of
23 September 2003, landing there in the morning of 24 September 2003 (see
paragraphs 111-112, 274, 326, 337, 356 and 374 above).
According to the RCAA letter of 29 July 2009, N379P’s itinerary was
Szczytno airport in Szymany, Poland-Constanţa-Rabat but the airport at
which it landed in Romania was Băneasa Airport in Bucharest (see
paragraphs 113 and 326 above). This information is consistent with
evidence heard from Mr J.G.S., who in Husayn (Abu Zubaydah) v. Poland
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209
testified that “this particular flight circuit was again disguised by dummy
flight planning although significantly not in respect of Poland” and that
“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” (see Husayn (Abu
Zubaydah) v. Poland, cited above, § 312; and paragraph 112 above).
505. 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
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 62 and 114 above).
506. In the light of the material in its possession, the Court finds no
counter evidence capable of casting doubt on the accuracy of the expert’s
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.
507. Accordingly, the Court finds it established beyond reasonable
doubt that:
(1) on 6 June 2003 on board the rendition plane N379P the applicant
was transferred by the CIA from Szymany, Poland to Rabat, Morocco;
(2) from 6 June to 23 September 2003 the applicant was detained in
Morocco at a facility used by the CIA;
(3) on 23 September 2003 on board the rendition plane N313P the
applicant was transferred by the CIA from Rabat to Guantánamo; and
(4) the applicant was detained in Guantánamo until a two-digit date in
April 2004 (redacted in the 2014 US Senate Committee Report), then
transferred by the CIA to another detention facility elsewhere.
4. As regards the establishments of the facts and assessment of
evidence relevant to the applicant’s allegations concerning his
rendition by the CIA to Romania, secret detention in Romania and
transfer by the CIA out of Romania (12 April 2004 to 6 October or
5 November 2005)
(a) Whether a CIA detention facility existed in Romania at the time alleged by
the applicant (22 September 2003
508. It is alleged that a CIA secret detention facility operated in
Romania from 22 September 2003 to the first days of November 2005,
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AL NASHIRI v. ROMANIA JUDGMENT
when it was closed following the publication of Dana Priest’s report on CIA
overseas clandestine prisons in Eastern Europe in The Washington Post on
2 November 2005 (see, in particular, paragraphs 445-448 above). The
Government denied that a CIA detention facility had ever existed on
Romania’s territory (see, in particular, paragraphs 420-425 above).
509. The Court notes at the outset that the following facts are either
uncontested or have been confirmed by the Court’s findings in Husayn (Abu
Zubaydah) v. Poland and flight data from numerous sources, including the
documents produced by the respondent Government:
(a) On 22 September 2003 plane N313P arrived in Szymany, Poland en
route from Kabul, left on the same day for Romania and, having indicated in
its flight plan Constanţa as its destination, in fact landed at Bucharest
Băneasa Airport. On 23 September 2003 the plane took off from Bucharest
for Rabat (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 408
and 419; and paragraphs 112-113, 326 and 504 above).
(b) On 5 November 2005 plane N1HC, having indicated in its flight plan
Mihail Kogălniceanu International Airport in Constanţa as its destination, in
fact landed at Băneasa Airport in Bucharest and on the same day took off
from Bucharest for Amman.
(c) On 5 November 2005 plane N248AB arrived in Amman at 23:49 and
on 6 November 2005, on the same night, left for Kabul;
(d) On the same night of 5-6 November 2005 both N1HC and N248AB
were in the same airport in Amman between 00:21 (N1HC’s landing) and
00:55 (N248AB’s departure) (see paragraph 135 above).
510. It has not been disputed by the Government that the Washington
Post publication was the first one in which East European countries were
mentioned in the context of the HVD Programme (see paragraphs 236 and
421 above).
It was followed by subsequent, more specific reports.
On 6 November 2005 Human Rights Watch, in the 2005 HRW
Statement, indicated Poland and Romania as the CIA accomplices in the
HVD Programme (see paragraphs 226-227 above).
That statement was followed by the HRW List of 30 November 2005
which referred to “ghost prisoners”, including the applicant, considered to
be possibly held in secret detention by the CIA (see paragraph 228 above).
A few days later, on 5 December 2005, an ABC News report named
Poland and Romania as countries hosting CIA secret prisons and listed the
names of eleven top al-Qaeda terrorist suspects, including the applicant,
being held in CIA custody. It also stated that, according to the CIA sources,
the US authorities had “scrambled to get all the suspects off the European
soil before Secretary of State Condoleezza Rice arrived there today” (see
paragraph 237 above).
511. Nor has it been disputed that the above disclosures soon triggered a
number of international inquiries into the CIA rendition and secret detention
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211
operations and allegations of torture and ill-treatment of prisoners. The
multiple investigations by international governmental organisations started
with the Council of Europe’s inquiry under Article 52 of the Convention
and the Marty Inquiry, followed by the European Parliament’s Fava Inquiry,
the 2010 UN Joint Study and the investigative work of the Council of
Europe’s Commissioner for Human Rights carried out until 2012. Also, in
that context, the ICRC independently prepared its earlier, confidential
reports and the 2007 ICRC Report (see paragraphs 246-280, 290
and 294-296 above). As a follow-up to the Fava Report, the European
Parliament LIBE Committee still continues to investigate the issue of the
CIA secret prisons in Europe (see paragraphs 282-290 above).
512. The initial 2006-2007 reports drawn up in the framework of the
inquiries conducted by the international governmental organisations
confirmed consistently, albeit in various terms, that there was at least a
strong suspicion that a CIA clandestine detention site had operated in
Romania.
(a) The 2006 Marty Report stated that, while the factual elements
gathered so far had not provided definitive evidence of secret detention
centres, Romania was “thus far the only Council of Europe member state to
be located on one of the rendition circuits” which bore “all the
characteristics of a detainee drop-off point”. The rendition circuit in
question was executed on 25 January 2004 by plane N313P which, before
landing in Romania, on 23 January 2004 rendered Mr El-Masri from Skopje
to the CIA ”black site” in Kabul (see paragraphs 253 and 327-330 above
and El Masri, cited above, §§ 21 and 157-158).
(b) The 2007 Marty Report affirmed that there was “now enough
evidence to state that secret detention facilities run by the CIA [had] existed
in Europe from 2003 to 2005, in particular in Poland and Romania” (see
paragraph 258 above). It stated that “Romania [had been] developed into a
site in which more detainees were transferred only as the HVD Programme
[had] expanded”. It was Senator Marty’s understanding that “the Romanian
“black site” [had been] incorporated into the programme in 2003, attained
its greatest significance in 2004 and operated until the second half of 2005”
(see paragraph 261 above).
The report also referred to the “clear inconsistencies in the flight data”
provided by various Romanian sources, when compared with data gathered
by the Marty Inquiry independently. The disagreement between these
sources was found to be “too fundamental and widespread to be explained
away by simple administrative glitches, or even by in-flight changes of
destinations by Pilots-in-Command, which were communicated to one
authority but not to another”. In sum, the report stated that “presently there
exist[ed] no truthful account of detainee transfer flights to Romania” (see
paragraph 264 above).
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Senator Marty in the 2006 and 2007 Marty Reports, as well as in his
affidavit of 24 April 2013 and testimony given at the fact-finding hearing
before the Court explained comprehensively the methodology adopted in his
inquiry and the sources of information on the basis of which the respective
findings had been made (see paragraphs 258, 262, 354 and 379 above).
(c) The Fava Report expressed “serious concern” about twenty-one
stopovers made by the CIA-operated aircraft at Romanian airports, which
on most occasions had come from or been bound for countries linked with
extraordinary rendition circuits.
It was also found that five flight plans had been filed with inconsistencies
as they had indicated a landing airport which had not corresponded with the
subsequent take-off airport (see paragraphs 271 and 274 above). Moreover,
the Fava Report identified three aircraft with multiple stopovers in Romania
that already at that early stage of the inquiries into the HVD Programme had
been known to have been involved in the CIA rendition operations.
Among those aircraft was N85VM, conclusively identified as having
been used for the rendition of Mr Osama Mustafa Nasr aka Abu Omar from
Germany to Egypt on 17 February 2003 (see also Nasr and Ghali, cited
above, §§ 39, 112 and 231) and N313P conclusively identified as having
been used for the rendition of Mr El-Masri from Skopje to Kabul on
23 January 2004 (see El-Masri, cited above, §§ 67 and 157-159).
The report also listed flights from suspicious locations that stopped over
in Romania in 2003-2005. The first flight N313P, from Szymany, Poland to
Bucharest, en route to Rabat, took place on 22 September 2003, the last one,
N1HC, from Bucharest to Amman, took place on 5 November 2005 (see
paragraphs 271, 273 and 276 above).
The conclusion in the Fava Report was that it could not exclude, “based
only on the statements made by Romanian authorities to the Temporary
Committee delegation to Romania, the possibility that US secret services
[had] operated in Romania and that no definite evidence ha[d] been
provided to contradict any of the allegations concerning the running of a
secret detention facility on Romanian soil” (see paragraphs 271 and 280
above).
With reference to that conclusion, Mr Fava testified at the fact-finding
hearing that “the conclusion we reached was a very strong suspicion that [a
CIA detention facility] existed, not certainty – there was no smoking gun”
(see paragraph 363 above).
The Fava Report relied on comprehensive materials from multiple
sources, comprising those collected during the TDIP delegation’s visits to
the countries concerned, including Romania, extensive flight data, expert
evidence, analysis of specific cases of several victims of the CIA
extraordinary rendition, interviews with the victims and their lawyers and
material acquired in the context of meetings with the national authorities
(see paragraphs 268-273 above).
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213
513. The 2010 UN Study, referring to Romania, mentioned that the
analysis of complex aeronautical data had demonstrated the circuit flown by
N313P in September 2003 and that the experts had not been able to identify
“any definite evidence of a detainee transfer into Romania” taking place
prior to that flight (see paragraph 296 above).
514. Subsequent reports, which were based on fuller knowledge of the
HVD Programme emerging from the CIA documents declassified in 2009
and 2010 and took into account progress in the research into rendition
flights, contained more categorical conclusions.
(a) Mr Hammarberg, in his dossier of 30 March 2012 addressed to the
Romanian Prosecutor General, stated that “sufficient evidence ha[d] now
been amassed to allow us to consider the existence of a CIA ”black site” in
Romania as a proven fact, and to affirm that serious human rights abuses
[had taken] place there”. According to Mr Hammarberg’s findings, the
opening of the CIA prison, codenamed “Bright Light” and the start of the
CIA detention operations in Bucharest was marked by the plane N313P
landing in Bucharest on the night of 22 September 2003. The physical
location was identified as the ORNISS building in Bucharest. The dossier
included, in chronological order, a list of eight disguised rendition flights
into Bucharest in respect of which “dummy” flight plans featuring
Constanţa or Timișoara had been filed, starting from the N313P flight on
22 September 2003 and ending with the N860JB flight on 21 August 2005.
No specific date of closure of the detention site was given; paragraph 18 of
the dossier indicated that it had operated for “a period of at least one year”
(see paragraphs 334-339). In response to the Court’s question regarding this
point, Mr Hammarberg explained that at that time their research had not
managed to establish the precise dates for the closure of the Romanian
“black site” nor for the applicant’s transfer from Romania (see
paragraph 346 above).
Mr Hammarberg, in his written response to the Court’s questions, gave
an account of the sources and methodology on which he relied in his
findings. The conclusions as to the operation of a secret CIA ”black site” in
Romania were based on “a number of different sources which were
cross-referenced and not on one piece of evidence in isolation”. This
included among other things, official US documents, flight records and
aeronautical data amassed from diverse entities across the global aviation
sector (see paragraph 345 above).
(b) The 2015 LIBE Briefing, which in addition to extensive flight data
had been based on an analysis of a large amount of new material disclosed
in the 2014 US Senate Committee Report, stated that it had been established
beyond reasonable doubt that a facility in Romania had been used by the
CIA to hold prisoners, that the first prisoners had been transferred to this
facility in September 2003 and that the last prisoners had been transferred
out of this facility in November 2005. The dossier included a list of fifteen
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AL NASHIRI v. ROMANIA JUDGMENT
rendition circuits through Romania, the first of which was executed by
N313P on 22-23 September 2003, the last of which was executed on
5-6 November 2005 and involved two planes N1HC (from Romania to
Jordan) and N248AB (from Jordan to Afghanistan) (see paragraphs 355-358
above).
515. Furthermore, in Husayn (Abu Zubaydah) v. Poland Senator Marty
and Mr J.G.S., referring in their PowerPoint presentation to the “final
rendition circuit” through Poland executed by N313P, testified that this
particular circuit had marked the closure of the CIA ”black site” in Poland
and the opening of the CIA’s second secret detention site in Europe –
located in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 312 and 414; Al Nashiri v. Poland, cited above, § 414; and
paragraph 112 above).
516. At the fact-finding hearing held in the present case the experts
heard by the Court confirmed in clear and categorical terms that a secret
detention facility had operated in Romania in the period indicated by the
applicant. They stated that the N313P flight on 22-23 September 2003 had
marked the opening of the site and that a “double-plane switch” circuit
involving two planes, identified as N1HC and N248AB had indicated its
closure, prompted by the publication of the Washington Post article referred
to above (see paragraph 508 above). In the same categorical terms they
identified the CIA detention facility located in Romania as the one referred
to in the 2014 US Senate Committee Report as “Detention Site Black” (see
also paragraphs 160-164 above).
(a) Senator Marty and Mr J.G.S in their PowerPoint presentation, in
support of the above conclusions, referred to the extensive flight data and
their correlation, as well as to the 2014 US Senate Committee Report. In
particular, Mr J.G.S. in connection with several specific references in that
report stated that the code name “Detention Site Black” in the report
corresponded in such “precise and extensive detail” to other multiple data
concerning Romania that “Romania, its territory, its airspace, its detention
facility, [was] inseparable from Detention Site Black (see paragraphs 131,
371, 374-376 above)
(b) Mr Black stated that it was “clear, beyond reasonable doubt that
there was a CIA detention facility in Romania” and that he was convinced
on “a wide array of different types of evidence” that it operated from
September 2003 until November 2005. He testified that there was no doubt
that the flight in November 2005 – which had been a two-plane switch
taking prisoners to Afghanistan – had signalled the end of the Romanian site
and that that flight had come within 72 hours after the existence of the site
had been revealed in the Washington Post article. He added that the 2014
US Senate Committee Report was very clear that at that point everyone who
had been remaining in Romania had been “shipped out to Afghanistan” (see
paragraphs 132 and 390 above).
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215
In his testimony, he also mentioned specific HVDs, including the
applicant, who had been detained in Romania between September 2003 and
2005, saying that “the fact that those individuals [had been] held in
Romania at various points between 2003 and 2005 [was] absolutely beyond
reasonable doubt, there [could not] be any alternative narrative to that that
[made] any sense”. He further stated that “Detention Site Black [was] the
site that fulfil[ed], in terms of its operating times, the flight paths that we
[knew] to have been connected to prisoner movements and to the CIA
rendition programme. Detention Site Black [was] the one which correlate[d]
precisely with those flight paths that our research [had] discovered, [had]
reconstructed” (see paragraphs 390 and 392 above).
517. The 2014 US Senate Committee Report includes several references
to Detention Site Black. To begin with, the report confirms that CIA
detainees were transferred to Detention Site Black in a country whose name
was redacted “in the fall of 2003”. It further confirms that the site still
operated in “the fall of 2004”, as well as in April and May 2005 (see
paragraphs 160-164 above) and that Mr Al Nashiri was held there in
October 2004 and June and July 2005 (see paragraphs 127, 158 and 162-163
above).
Finally, it indicates that Detention Site Black was closed “after
publication of the Washington Post article”, following the pressure from the
country concerned, which demanded the closure within a number of hours
which, although redacted in the text, clearly comprised two digits (see
paragraph 133 above).
518. The Court observes that this indication in theory could mean any
time between 10 and 99 hours. However, in reality, given that the CIA had
to secure a safe, secret transfer of possibly several detainees by air to
another consenting country, such demand could not be dealt with abruptly
and immediately and, by the nature of things, inevitably required some
preparation and handling of logistical problems. According to the 2014 US
Senate Committee Report, the “CIA transferred ... the remaining CIA
detainees out of the facility shortly thereafter” (see paragraph 133 above).
Having regard to the fact that the Washington Post article was published on
2 November 2005, the dates on which the transfer could realistically have
been carried out – that is to say, within the range of 24-99 hours – had to be
situated in the short period from 3 to 6 November 2005. This coincides
exactly with the flight identified by the experts as the one marking the
closure of “Detention Site Black” in Romania, namely N1HC from
Bucharest to Amman, executed on 5 November 2005 (see also
paragraph 509 above).
519. Furthermore, all the materials in the Court’s possession, including
the list of twenty-one “suspicious flights” produced by the Government
unambiguously demonstrate that a series of CIA-associated aircraft landings
at Bucharest Băneasa Airport started on 22 September 2003 with N313P
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and ended on 5 November 2005 with N1HC. Markedly, these two particular
flight circuits were disguised by the so-called “dummy flight planning”– a
practice that, as described by the experts and analysed by the Court in its
previous judgments concerning the CIA rendition operations in Poland,
consisted in filling false flight plans that indicated a route which the planes
did not, or even intend to, fly. Both aircraft’s flight plans indicated
Constanţa as their destination but in fact they landed at and took off from
Bucharest Băneasa Airport (see paragraphs 112, with references to Husayn
(Abu Zubaydah) v. Poland, and 130, 134-135 and 372-373 above; see also
Al Nashiri v. Poland, cited above, §§ 419-422).
520. The Government acknowledged that on 22-23 September 2003 the
flight plan for N313P, initially indicating Constanţa as its destination, had
been changed to Bucharest Băneasa Airport when the plane had been en
route (see paragraph 439 above). However, they did not see how the change
of flight plans executed by the flight operator – a change on which the
Romanian authorities had no influence – could be indicative of their
complicity in the CIA rendition operations or, still less, of the existence of a
CIA “black site” in Romania (see paragraphs 436-440 above).
521. Addressing the Government’s arguments, the Court finds it
appropriate to reiterate certain findings concerning the operation of the CIA-
associated flights in Romania emerging from the material in the case file.
(a) As already noted above (see paragraph 512 above), the Fava Report
referred to twenty-one stopovers made by the CIA-operated aircraft at
Romanian airports during the relevant period. Significantly, most stopovers
(thirteen) and take-offs (five) found suspicious took place at Bucharest
airports. Several of those flights are included in the Government’s list of
twenty-one “suspicious flights” (see paragraphs 273 and 327 above). The
Fava Inquiry also identified fourteen different CIA aircraft that landed in
Romania at the material time and referred to at least five inconsistent flight
plans, concerning, among others, the N1HC flight on 5 November 2005. All
these plans indicated destinations filed for Constanţa or Timisoara;
however, the aircraft real destination was Bucharest Băneasa Airport, at
which those flights in fact landed and from which they took off
subsequently (see paragraphs 271-274 and 276 above).
(b) Mr Hammarberg’s dossier for the Romanian Prosecutor General
contained a – non-exhaustive – list of the most significant eight flights into
Bucharest, starting from N313P on 22 September 2003. Destinations for all
of them were disguised by the “dummy” flight planning. All bore the
characteristics of “detainee drop-offs”, i.e. transportation of CIA prisoners
into the country. All those planes are on the list of twenty-one “suspicious
flights” furnished by the Government (see paragraphs 327 and 337 above).
(c) The 2015 LIBE Briefing identified fifteen rendition missions linking
Romania to other CIA prison host countries or to known or suspected
prisoner transfers. According to that report, the first such mission was
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217
executed by N313P on 22 September 2003, the last by N1HC on
5 November 2005 (see paragraphs 357-358 and 514 above).
The list of fifteen rendition missions in the 2015 LIBE Briefing overlaps
with the Government’s list of twenty-one “suspicious flights” (see
paragraphs 327 and 357-358 above).
(d) In all the inquiries conducted by the international governmental and
non-governmental organisations, which were extensively referred to above,
most planes included in the Government’s list have been conclusively and
definitely identified as carrying out the CIA rendition missions (see
paragraphs 250-264; 268-290; 296; 327-330; 334-336; and 355-358 above).
(e) It emerges from the comparison of the list of twenty-one “suspicious
flights” with the above reports identifying the aircraft associated with the
CIA’s transportation of prisoners that between 23 September 2003 and
5 November 2005 there was a continued, steady and concentrated flow of
those planes through Bucharest Băneasa Airport. According to the material
produced by the Government themselves, during that period fifteen CIA
flights arrived at Bucharest Băneasa Airport and only two were recorded by
the Romanian authorities as landing at Constanţa Mihail Kogălniceanu
Airport. The CIA flights into Bucharest arrived at fairly regular intervals of
between one and some three months (see paragraphs 327 and 357-358
above).
522. Considering the material referred to above as a 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 Romania between
22 September 2003 and the beginning of November 2005. Accordingly, the
burden of proof should shift to the respondent Government (see El-Masri,
cited above, §§ 154-165, and paragraphs 492-493 above).
523. However, the Government have failed to demonstrate why the
evidence referred to above cannot serve to corroborate the applicant’s
allegations. Apart from their firm, albeit general, denial that the facts as
presented by the applicant and disclosed in the international inquiries – to
begin with the Marty Inquiry and Mr Hammarberg’s investigative work –
never took place or were grossly distorted to Romania’s disadvantage, they
have not offered any cogent reasons for the series of landings of CIA-
associated aircraft at Bucharest between 22 September 2003 and
5 November 2005 (see also Al Nashiri v. Poland, cited above, § 414; and
Husayn (Abu Zubaydah) v. Poland, cited above, § 414).
Likewise, the Government have not produced any evidence capable of
contradicting the findings of the international inquiries and the experts heard
by the Court, categorically stating that the aircraft in question were used by
the CIA for transportation of prisoners into Romania. Nor have they refuted
expert evidence to the effect that the CIA prison referred to in the 2014 US
Senate Report as “Detention Site Black” was located in Romania (see also
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and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and
Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415).
524. In that context, the Court cannot but note that all the international
inquiries and other reports challenged by the Government were based on
extensive, meticulous work which was done by the experts and politicians
of the highest integrity and competence and whose only aim and mission
was to reveal the facts and establish the truth about what had occurred in
Europe during the CIA rendition operations. Their work was often impeded
by the extreme secrecy surrounding the CIA operations, the uncooperative
attitude of the national authorities and the lack of access to the necessary
information – information which was revealed only gradually, over many
years and which still remains incomplete due to the classification of
essential documents, in particular the full version of the 2014 US Senate
Committee Report. It is worth noting that the inquiries conducted in
2006-2007 did not have the benefit of access to the CIA declassified
documents, which were released in 2009-2010 (see paragraphs 36-58 above)
and which provided an important insight into the fate of specific HVDs,
including Mr Al Nashiri, with such details as dates of detainees’ transfers
between the CIA “black sites” and interrogation schedules.
As regards the Government’s challenge to the impartiality and credibility
of Reprieve, based on its involvement in ongoing investigations into CIA
rendition and secret detention and case work regarding Guantánamo
prisoners (see paragraph 434 above), the Court finds no ground whatsoever
to consider that Reprieve and its experts, who have – as for instance
Mr Black – also been involved in the European Parliament’s inquiry, lack
objectivity in representing the facts concerning the operation of the HVD
Programme in Europe and the plight of detainees, including the applicant.
In so far as the Government can be seen as impliedly contesting the
credibility of evidence from other experts heard at the fact-finding hearing
(see paragraphs 399 and 430-435 above), the Court would wish to underline
that Mr Fava, Senator Marty and Mr J.G.S. already gave evidence in
Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland. The Court, in
its examination of those cases, relied heavily on their testimonies
considering them to be one of the most important parts of the evidence and
finding them fully reliable and credible (see Al Nashiri v. Poland, cited
above, §§ 404, 415, 434-436 and 441; and Husayn (Abu Zubaydah)
v Poland, cited above, §§ 404, 415-416, 426-427, 434- 436, 439-440).
Furthermore, in El-Masri the Court considered the expert report from
Mr J.G.S. to be “compelling evidence” which was duly taken into account
in its establishment of the facts in the case (see El-Masri, cited above,
§§ 159 and 166).
Consequently, in the Court’s eyes, there is nothing in the Government’s
submission that would be capable of shedding the doubt on the integrity and
dependability of the experts whose testimony was taken in the present case.
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219
525. The Government also argued that the fact that the sources relied on
by the applicant, including the 2007 Marty Report and Mr Hammarberg’s
dossier, had given different indications as to the exact location of the
alleged “black site” in Romania deprived his allegations of credibility.
Referring in particular to the ORNISS building, they relied on witness R’s
statements obtained in the investigation denying that this location had, or
could ever have been, used for the CIA prison (see paragraphs 325
and 422-425 above).
The Court does not find these arguments convincing.
It is true that the applicant, relying on the press disclosures, indicated the
ORNISS building as a probable CIA prison. However, considering the
secrecy of the CIA operations it cannot be realistically expected that this
kind of indication will be absolutely certain, unless the governments
concerned decide to disclose such locations and formally “officialise” the
information circulating in the public domain. In that regard, the Court would
note in passing that the likelihood of the ORNISS building having hosted
the CIA facility has also been considered in the inquiry conducted by the
European Parliament; however, the Romanian authorities did not enable the
LIBE delegation to visit the site during their fact-finding mission in
September 2015 (see paragraphs 288-290 above).
The Court will not speculate on that likelihood. Nor is it necessary for
the purposes of its ruling to establish where the CIA facility was exactly
located. Given the coherent and unrefuted evidence corroborating the
applicant’s allegations as to the existence of the CIA “black site” in
Romania, the fact that he did not state its precise location does not
undermine the credibility of his allegations.
526. In view of the foregoing, the Government’s objection to the
credibility of the evidence and sources relied on by the applicant (see
paragraphs 430-435 above) cannot be upheld.
527. Consequently, the Court considers the applicant’s allegations
sufficiently convincing and, having regard to the above evidence from
numerous sources corroborating his version, finds it established beyond
reasonable doubt that:
(a) a CIA detention facility, codenamed Detention Site Black in the 2014
US Senate Committee Report, was located in Romania;
(b) the facility operated from 22 September 2003 and its opening was
marked by flight N313P which took off from Szymany, Poland on
22 September 2003 and, having disguised its destination by indicating
Mihail Kogălniceanu International Airport in Constanţa, landed at
Bucharest Băneasa Airport on the same day; and
(c) the facility was closed on the Romanian authorities’ demand and its
closure was marked by flight N1HC which took off from Porto, Portugal on
5 November 2005 and, having disguised its destination by indicating Mihail
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Kogălniceanu International Airport in Constanţa, landed at Bucharest
Băneasa Airport and on the same day took off for Amman, Jordan.
(b) Whether the applicant
secret detention at the CIA Detention Site Black in Romania and transfer
from Romania to another CIA secret detention facility elsewhere (from
12 April 2004 to 6 October 2005 or 5 November 2005) were proved before
the Court
528. It is alleged that the applicant was transferred to Romania from
Guantánamo on board N85VM on 12 April 2004 and that he was detained at
Detention Site Black in Romania, also codenamed “Bright Light” or
“Britelite” until at least 6 October 2005 or, at the latest, until 5 November
2005 (see paragraphs 115-116 and 445-451 above). The Government firmly
contested this (see paragraphs 426-429 and 436-437 above).
(i) Preliminary considerations
529. The Court is mindful that, as regards the applicant’s actual presence
in Romania, there is no direct evidence that it was the applicant who was
transported on board the N85VM flight from Guantánamo to Bucharest or
that he was subsequently transferred from Bucharest to another CIA secret
detention facility on 6 October or 5 November 2006, the two possible dates
indicated by the experts (see paragraphs 129-135 above).
The applicant, who for years on end was held in detention conditions
specifically designed to isolate and disorientate a person 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 Romania 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, 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 appeared in a
record of persons on board filed with any official institution (see Al Nashiri
v. Poland, cited above, §§ 410-411).
530. In view of the foregoing, in order to ascertain whether or not it can
be concluded that the applicant was detained at Detention Site Black in
Romania at the relevant time, the Court will take into account all the facts
that have already been found established beyond reasonable doubt (see
paragraphs 499, 507 and 527 above) and analyse all other material in its
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221
possession, including, in particular, the 2014 US Senate Committee Report
and expert evidence reconstructing the chronology of the applicant’s
rendition and detention in 2003-2005 (see paragraphs 102-140, 159-164,
167-190 and 251-393 above).
(ii) Transfers and secret detention
531. The Court observes that the following facts either are not disputed
or have also been confirmed by flight data from numerous sources,
including the documents produced by the respondent Government:
(a) On 12 April 2004 plane N85VM, having indicated in its flight plans
Mihail Kogălniceanu International Airport in Constanţa as its destination, in
fact landed in Băneasa Airport in Bucharest and took off from there on the
same day (see paragraph 118 above);
(b) that on 5 October 2005 plane N308AB, having indicated in its flight
plans Mihail Kogălniceanu International Airport in Constanţa as its
destination, in fact landed at Băneasa Airport in Bucharest and took off
from Bucharest for Tirana on the same day;
(c) that on 5 October 2005 plane N787WH landed in Tirana at 05:52 and
stayed there until 23:44, at which time it departed for Shannon;
(d) that on 5 October 2005 both N308AB and N787WH were in the
same airport in Tirana between 22:38 (N308AB’s landing) and 23:44
(N787WH’s departure);
(e) that on 6 October 2005 N787WH, having indicated in its flight plans
Tallinn, Estonia as its destination, in fact landed at Vilnius International
Airport in Lithuania (see paragraphs 135 and 331 above).
532. As regards the rendition circuit of 5-6 November 2005, the Court
would reiterate that it has already been established that:
- on 5 November 2005 N1HC, having disguised its destination as
Constanţa, in fact landed at Bucharest Băneasa Airport and took off from
there for Amman, arriving there in the night on 5 November 2005;
- N248AB arrived in Amman 6 November 2005, and on the same night,
left for Kabul; and
- on the same night of 5/6 November 2005 both N1HC and N248AB
were in the same airport in Amman between 00:21 and 00:55 (see
paragraphs 509 and 527 above).
533. The Court has also established that after his transfers from Poland
to Morocco and from Morocco to Guantánamo the applicant was detained in
Guantánamo until an unspecified two-digit date in April 2004 (see
paragraph 507 above). As noted above, the 2014 US Senate Committee
Report states that by that date, “all five CIA detainees were transferred from
Guantánamo to other CIA detention facilities” (see paragraphs 114 and 505
above, with further references).
534. Mr J.G.S., in his testimony, explained that the use of the word
“facilities” in the plural in the 2014 US Senate Committee Report was
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significant in the context of the applicant’s detention given that, as the very
same report established, following his transfer from Poland, he had been
held at five different CIA “black sites” (see also paragraphs 102
and 104-108 above). Mr Al Nashiri could not, therefore, have been
transferred from Guantánamo back to Morocco. Mr J.G.S. further explained
that at the relevant time there had been two distinct detainee transfers from
Guantánamo; the first which had taken some detainees to Rabat on
27 March 2004 and the second which had taken the remaining ones on plane
N85VM to Romania, via a stopover in Tenerife, on 12 April 2004. This, he
said, was the sole outward flight linking Guantánamo with Romania. Also,
it emerged from the 2014 US Senate Committee Report and cables
regarding the applicant’s treatment that he found himself at Detention Site
Black in the third and fourth quarter of 2004 and in July 2005. Mr J.G.S
concluded that, in order for the applicant to be at Detention Site Black or
“Britelite” by that time, he had to have been brought to Romania on flight
N85VM on 12 April 2004 (see paragraphs 119-120 above).
Moreover, in respect of that flight the CIA had recourse to its systematic
practice of disguised flight planning which, as the expert stated, “in fact
became a tell-tale sign of rendition or detainee transfer activity on such
flights” (see paragraph 119 above).
535. Mr Black stated that he was aware of two possible flights that could
have taken the applicant into Romania and N85VM was one of them. He
indicated that there had been a potential other flight that had occurred in
February 2005. While it was known for a fact that the applicant had been in
Romania after February 2005 and in June 2005, there were also indications
that he had been held in Romania before, in late 2004. That led Mr Black to
prefer, of these two possibilities, the 12 April 2004 flight as being the more
likely of the two (see paragraph 121 above).
536. The Government acknowledged that the flight plan for N85VM,
initially indicating Constanţa as its destination, had been changed to
Bucharest, Băneasa Airport when the plane had been en route but did not
consider that this element could confirm the applicant’s secret detention in
Romania (see paragraph 437 above). They produced documents issued by
the RAS at Băneasa Airport in connection with the N85VM landing on
12 April 2004 (see paragraph 118 above).
As in respect of other allegedly “suspicious” flights, the Government
asserted that the flight had been of a “private and non-commercial nature”
and had not been executed in connection with the HVD Programme (see
paragraph 436 above).
537. However, this assertion does not seem to be supported by the
materials gathered in the present case. To the contrary, the Court finds that
in addition to the expert evidence referred to above, there is other abundant
evidence to the effect that on 12 April 2004 plane N85VM executed a
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223
rendition mission to Romania with the purpose of “dropping off” detainees
from Guantánamo.
In that regard, the Court observes that since at least 2007 the findings of
the international inquiries have clearly associated N85VM with the CIA
rendition operations (see paragraphs 271- 273, 337, 342 and 358 above). As
already noted above, N85VM was conclusively identified as the plane used
earlier for the rendition of Osama Mustafa Nasr otherwise known as Abu
Omar (see paragraph 512 above). The former Council of Europe’s
Commissioner for Human Rights dossier for the Romanian Prosecutor
General included that flight among disguised rendition flights into
Bucharest, bearing the character of detainee “drop-off” (see paragraph 337
above). The same dossier listed the applicant among HVDs who had been
brought to a CIA “black site” in Romania and indicated 12 April 2004 as
the date of his transfer to Romania (see paragraph 342 above).
The 2015 LIBE Briefing indicated flight N85VM on 12 April 2004
among the missions carried out under rendition contracts (see paragraph 358
above).
That flight is also listed among twenty-one “suspicious flights” in the
document produced by the Government (see paragraph 327 above).
538. As to the applicant’s rendition by the CIA from Romania, the
experts gave 6 October 2005 and 5 November 2005 as two possible dates of
the applicant’s transfer (see paragraphs 129-132 above).
Mr J.G.S described in detail the CIA “plane-switch” operation that,
according to him, had taken place in the course of the flight circuit on
5-6 October 2005 and involved two aircraft: N308AB and N787WH. On
this premise, on 5 October 2005 the applicant was taken on board N308AB
from Băneasa Bucharest City Airport to Tirana and, subsequently, on board
N787WH to Vilnius to a CIA ”black site” in Lithuania, referred to as
“Detention Site Violet” in the 2014 US Senate Committee Report (see
paragraphs 130-131 above).
Mr Black considered both dates as probable, with the 6 October 2005
transfer of the applicant being more likely (see paragraph 132 above).
539. Having regard to all the various documentary and oral evidence
referred to above, the Court is satisfied that there is prima facie evidence in
favour of the applicant’s version of the events and that the burden of proof
should shift to the Government.
540. Yet again in the Court’s view the Government have failed to give
any convincing grounds to explain why the evidence considered above
cannot support the applicant’s allegations. They asserted that the applicant’s
version of events should be rejected as it was incoherent and that in his
account of the facts there had been inconsistencies regarding the dates,
circumstances and the exact period of his alleged detention in Romania (see
paragraphs 426-429 above).
The Court does not share the Government’s assessment.
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While it is true that, with the passage of time, the applicant adduced
newly disclosed facts relevant for his complaints or corrected the dates
initially given for his detention (see paragraphs 115-116 above), this does
not by itself render his version of events inconsistent or incredible. In that
context the Court would again refer to the fact that since his capture in
mid-October 2002 the applicant has been continually prevented from giving
any direct account of his fate even to the counsel representing him before
the Court (see paragraphs 494-497 above).
541. Furthermore, having regard to the above evidence demonstrating
clearly, consistently and conclusively the chronology of the events
preceding the applicant’s transfer to Romania, his transfer to Romania on
12 April 2004 and his presence at Detention Site Black located in Romania
in 2004 and 2005 (see paragraphs 126-127, 158 and 162-163 above and 545
below), as well as expert evidence confirming that there were two – and
only two – possible dates on which he could be taken by the CIA out of
Romania, the Court does not find it indispensable to determine on which
specific date the transfer occurred. It is certain and beyond any reasonable
doubt that the applicant, once detained at Detention Site Black and, as
confirmed by the 2014 US Senate Committee Report and the experts, still
present there at least until July 2005, must have been transferred out of it at
some later point before or when the site was definitely closed on
5 November 2005 (see paragraph 527 above). The experts’ conclusions are
founded on in-depth analysis of extensive international aviation data,
contractual documents pertaining to rendition missions executed by the air
companies used by the CIA and large amount of data released by the US
authorities, including the CIA. On this basis, they gave a time-frame which
is sufficiently accurate for the Court to conclude that the applicant must
have been taken out of Romania either on 6 October 2005 or on
5 November 2005 to one of the – at the time two – remaining CIA detention
facilities, referred to in the 2014 US Senate Committee Report as Detention
Site Violet and Detention Site Brown.
542. Accordingly, the Court finds it established beyond reasonable
doubt that:
(a) On 12 April 2004 the applicant was transferred by the CIA from
Guantánamo to Romania on board N85VM.
(b) From 12 April 2004 to 6 October 2005 or, at the latest, 5 November
2005, the applicant was detained in the CIA detention facility in Romania
code-named “Detention Site Black” according to the 2014 US Senate
Committee Report.
(c) On 6 October 2005 on board N308AB or, at the latest, on 5
November 2005, on board N1HC via a double-plane switch the applicant
was transferred by the CIA out of Romania to one of the two remaining CIA
detention facilities, code-named Detention Site Violet and Detention Site
Brown according to the 2014 US Senate Committee Report.
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225
(iii) The applicant’s treatment in CIA custody in Romania
543. It is alleged that during his secret detention in Romania the
applicant was subjected to torture and other forms of treatment prohibited
by Article 3 of the Convention. The Government have not addressed this
issue.
544. The Court observes that, in contrast to Al Nashiri v. Poland where
the treatment to which the applicant was subjected by the CIA during his
detention in Poland could be established with certainty owing to the CIA’s
declassified materials depicting in graphic detail the torture inflicted on him
in the course of the interrogations (see Al Nashiri v. Poland, cited above,
§§ 416 and 514-516), in the present case there is no evidence demonstrating
that at Detention Site Black in Romania he was subjected to EITs in
connection with interrogations (see paragraphs 48-55 above).
545. As regards recourse to harsh interrogation techniques at the
relevant time, the 2014 US Senate Committee Report mentions 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 late 2005 and in 2006 (see paragraph 94 above).
In respect of the applicant, the report states that in the “final years” of his
detention “most of the intelligence requirements for Al Nashiri involved
showing [him] photographs”. Those “debriefings” were suspended in June
2005 apparently because of the low value of intelligence obtained from him
and “because debriefings often were the ‘catalyst’ for his outbursts” (see
paragraphs 126-127 above). Other heavily redacted passages in the report
speak of “feeding him rectally”, which resulted from his “short-lived hunger
strike” at some unspecified time in 2004. It is also mentioned that in
October 2004 he underwent a psychological assessment in the context of
“management challenges” posed to the CIA by psychological problems
experienced by the detainees “who had been held in austere conditions and
in solitary confinement”. The applicant’s assessment was used by the CIA
in discussions on “establishing an endgame” for the HVD Programme (see
paragraphs 126, 158 and 162-163 above). In July 2005 the CIA expressed
concern regarding the applicant’s “continued state of depression and
uncooperative attitude”. Days later a psychologist established that the
applicant was “on the verge of a breakdown” (see paragraph 158 above).
546. According to the experts, even though the applicant was in all
likelihood no longer interrogated with the use of the EITs, he did, as
Mr J.G.S. stated “purely by virtue of the conditions in which he [had been]
held” suffer ill-treatment (see paragraph 124 above). Mr Black added that it
was clear that the applicant, in particular when he had been in Romania, was
experiencing serious psychological problems as a result of the treatment he
had received (see paragraph 125 above).
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547. As regards the Court’s establishment of the facts of the case, the
detailed rules governing the 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 12 April 2004 to 6 October 2005 or
5 November 2005. The Court therefore finds it established beyond any
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 56-58 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 Black for
the purposes of his complaint under the substantive limb of Article 3 of the
,
Conventionthe Court observes that the 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
paragraph 56-58 above).
5. As regards the establishment of the facts and assessment of evidence
relevant to the applicant’s allegations concerning Romania’s
knowledge of and complicity in the CIA HVD Programme
(a) Relations of cooperation between the Romanian authorities and the CIA,
including an agreement to host a detention facility, request for and
acceptance of a
and acquaintance with some elements of the HVD Programme
(i) Agreement to host a CIA detention facility, request for and acceptance of a
“subsidy” from the CIA and provision of premises for the CIA
548. The 2014 US Senate Committee Report, in the chapter giving
details as to the establishment of Detention Site Black, states that in an
unspecified month (redacted the text) in 2002 the CIA “entered into an
agreement” with the country concerned “to host a CIA detention facility”.
While the terms of that agreement have not been disclosed, it appears
from subsequent passages that, in order to demonstrate to the country’s
authority (or person) whose name was redacted and to “the highest levels of
the Country ... government” that the US authorities “deeply appreciate[d]
their cooperation and support for the detention program”, the CIA station in
the country was invited by their Headquarters “to identify ways to support
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227
the” – again redacted – country’s bodies (presumably, or activities) by
financial means, defined as a “subsidy” (see paragraph 161 above).
549. The requested subsidy which was received in appreciation of
“cooperation and support” amounted to a sum (redacted in the text) that was
a multiple of USD million; in fact, the amount which was initially put on –
in the report’s words – “wish list” presented on behalf of the country by the
CIA station was later increased by a further (redacted) multiple of USD
million (see paragraph 161 above).
The fact that such financial rewards were, as a matter of the general
policy and practice, offered to the authorities of countries hosting CIA
“black sites” is also 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 97 above).
550. In that context, the Court would also wish to refer to its findings
regarding the national authorities’ knowledge of the CIA HVD Programme
in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and the issue
of the alleged existence of a bilateral agreement between Poland and the
USA on the setting up and running of a secret CIA prison. In that case, the
Court did not find it necessary for its examination of the case to establish
whether such agreement or agreements existed and if so, in what format or
what was specifically provided therein. It did, however, consider it
inconceivable that the rendition aircraft could have crossed Polish airspace,
landed at and departed from a Polish airport and that the CIA could have
occupied the premises in Poland without some kind of pre-existing
arrangement enabling the CIA operation in Poland to be first prepared and
then executed (see Al Nashiri v. Poland, cited above, §§ 423-428; and
Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430).
The same conclusion is valid in respect of Romania; moreover, in the
present case it has been reinforced by evidence from the 2014 US Senate
Committee Report, unambiguously demonstrating the existence of a
bilateral agreement between Romania and the USA on hosting Detention
Site Black on Romanian territory.
551. The Court would also add that the above-cited sections of the 2014
US Senate Committee Report further support the conclusions of the 2007
Marty Report, stating that “the key arrangements for CIA clandestine
operations in Europe were secured on a bilateral level”, that “the CIA
brokered ‘operating agreements’ with the Governments of Poland and
Romania to hold its high-value detainees ... in secret detention facilities on
their respective territories” and that “Poland and Romania agreed to provide
the premises in which these facilities were established, the highest degrees
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of physical security and secrecy, and steadfast guarantees of non-
interference” (see paragraph 260 above; see also Al Nashiri v. Poland, cited
above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above,
§§ 425-430).
In his affidavit made several years later, on 24 April 2013, Senator Marty
stated that his “convictions regarding Romania’s participation in the CIA’s
HVD Programme were unambiguous and unwavering”, adding that “up to
the present day, I stand by every one of the factual findings I delivered in
my 2006 and 2007 PACE Reports” and that his “certitude that a CIA ‘black
site’ existed in Romania [had] only increased since that time” (see
paragraph 354 above).
At the fact-finding hearing he added that, based on “extremely precise
testimony” obtained in the course of his inquiry, the Romanian officials
“must have known that the CIA used their territory for transfers of prisoners
in the context of the war on terror” (see paragraph 380 above)
552. In that regard, the Court notes that the 2007 Marty Report listed by
name several individual high-office holders who “knew about, authorised
and stand accountable for Romania’s role in the CIA’s operation of
‘out-of-theatre’ secret detention facilities on Romanian territory, from 2003
to 2005” (see paragraph 262 above).
Two of those identified in the report, namely former President of
Romania, Ion Iliescu and his former Advisor on National Security,
Ioan Talpeş several years later made public statements relating to the CIA
rendition operation in their interviews given to Spiegel Online in 2014 and
2015 (see paragraphs 244 and 245 above).
553. In December 2014, in the first Spiegel Online publication,
Mr Talpeş was reported as saying that “there were one or two locations in
Romania at which the CIA probably held persons who were subjected to
inhuman treatment”. It was further reported that “had, from 2003 onwards,
continued discussions with officials of the CIA and the US military about a
more intense cooperation” and that in that context “it was agreed that the
CIA could carry out its own activities in certain locations”. He did not know
where they were and “Romania was, expressly, not interested in what the
CIA was doing there”. Mr Talpeş also told Spiegel Online that in 2003 and
2004 he had informed President Iliescu that the CIA had carried out “certain
activities” on Romanian territory; at that time “he did not think that the CIA
could possibly torture captives” (see paragraph 244 above).
554. In April 2015, in the second Spiegel Online publication, Mr Iliescu
was reported as stating that “around the turn of the year 2002-2003, our
allies asked us for a site” and that he, as Head of State, had in principle
granted that request but the details had been taken care of by Mr Talpeş. He
added that “we [had not interfered] with the activities of the USA on this
site”.
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229
Spiegel Online further reported that Mr Talpeş had confirmed
Mr Iliescu’s statements, adding that at the turn of 2002-2003 he had
received a request from a representative of the CIA in Romania for
premises, which the CIA needed for its own activities. He had arranged for
a building in Bucharest to be given to the CIA. The building was used by
the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not
reveal its location (see paragraph 245 above).
555. In that context, it is also to be noted that the 2016 EP Resolution
states that Mr Talpeş “admitted on record to the European Parliament
delegation that he had been fully aware of the CIA’s presence on Romanian
territory, acknowledging that he had given permission to ‘lease’ a
government building to the CIA” (see paragraph 290 above).
556. Referring to Mr Iliescu’s and Mr Talpeş’ interviews in Spiegel
Online, the Government argued that subsequently their initially ambiguous
statements had been clarified to the effect that there had been no
cooperation and no complicity in the CIA rendition and secret detention
operations on the part of Romania. In that regard, the Government also
relied on evidence from witnesses obtained in the criminal investigation
conducted in Romania (see paragraphs 441-442 above).
557. The Court does not share this assessment.
It is true that certain Romanian officials, for instance Y and Z, who
testified in the investigation in May and June 2015, denied receiving any
such request or having any knowledge of the existence of the CIA prisons in
the country (see paragraphs 300-302 above).
Yet in that regard the Court cannot but note that witness Z in his
testimony given on 18 June 2015 nevertheless confirmed that “USA
Government officials [had] asked the Romanian authorities to offer some
locations on Romanian territory to be used for actions of combating the
international terrorist threats by the representatives of the CIA, on the same
pattern as that used in the other NATO Member States” and that “finally
one single location [had been] offered”. It was understood “at that stage, in
2003, that it should be an office building in Bucharest” (see paragraph 302
above).
558. The accounts given by Mr Talpeş and Mr Iliescu to Spiegel Online
in their interviews and Mr Talpeş’ admission to the European Parliament’s
delegation match the disclosures in the 2014 US Senate Committee Report,
in particular regarding the date of the agreement to host a CIA secret
detention site (2002), the fact that the Romanian authorities were asked for
premises for the CIA, the time at which the premises were provided (2003)
and the fact that they were informed of the purpose for which the premises
that Romania offered were to be used (see paragraphs 161 and 548 above).
They also correspond to the Court’s above findings as to the dates marking
the opening of Detention Site Black in Romania (see paragraph 527 above).
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559. The statements obtained in the investigation relied on by the
Government are in a marked contrast to the disclosures made by the US
authorities, Romania’s partner under the agreement. The Court does not see
how the findings of the US Senate Intelligence Committee, based on a
several-year-long investigation and in-depth analysis of first-hand evidence,
which in most part came from classified “top secret” sources, including
more than six million pages of CIA documents (see paragraphs 78-80
above) could be undermined by the material referred to by the Government.
(ii) Acquiescence with some elements of the HVD Programme
560. The 2014 US Senate Committee Report, in the chapter concerning
the establishment of the CIA Detention Site Black (see paragraphs 161
and 548 above) also refers to several interventions vis-à-vis the CIA made
by the US ambassador in the country in the context of the operation of the
CIA HVD Programme in that country and public disclosures of ill-treatment
of detainees in US custody. First, in August 2003, he expressed concern as
to whether the State Department was aware of the CIA detention facility in
the country and its “potential impact” on US policy in respect of the State
concerned. The second and third interventions, prompted by “revelations
about US detainee abuses” were made in May 2004 and in the “fall of
2004”.
The report further states that “while it is unclear how the ambassador’s
concerns were resolved, he later joined the chief of Station in making a
presentation” to the country’s authorities (or representatives) whose names
were redacted in the text. The presentation did not describe the EITs but
“represented that without the full range of these interrogation measures” the
US “would not have succeeded in overcoming [the] resistance “of Khalid
Sheikh Mohammed” and “other equally resistant HVDs”. The presentation
also included representations “attributing to CIA detainees critical
information” on several terror plots, including the “Karachi Plot”, the
“Heathrow Plot” and the “Second Wave Plot”. Also, in the context of
intelligence obtained, several well-known HVDs in US custody were
mentioned by name (see paragraph 161 above).
561. The above information originated in an evidential source to which
the Court attributes utmost credibility (see also paragraph 559 above). It
gives a description of a concrete event – an oral presentation – that occurred
at some time following “the fall of 2004” and during which, in the context
of the operation of Detention Site Black in the country, the Romanian
authorities were presented with an outline of the CIA HVD Programme by
the US officials. Even though the format of the meeting and names or
functions of participants representing the host country have not been
revealed, the disclosure clearly shows that the presentation included a fairly
extensive account of the HVD Programme. To begin with, the US officials
clearly spoke of intelligence that had been obtained from high-value
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231
detainees through “overcoming resistance” by means of a “full range of
interrogation measures”. They also suggested that specific terrorist suspects
in CIA custody had provided “critical intelligence” on prominent terror
plots. CIA prisoners whose resistance was “overcome” as a result of
interrogations were spoken of, to mention only Khalid Sheikh Mohammed,
the top HVD in CIA custody, suspected of masterminding the 11 September
2001 terrorist attacks in the USA.
(b) Assistance in disguising the CIA rendition aircraft
Romania by means of the so-called
562. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the
fact that the national authorities 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 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.
563. It is to be reiterated that the Government acknowledged that in
respect of two flights, namely N313P on 22 September 2003 and NVM85
on 12 April 2004 the flight plans had been changed when the planes had
been in the air. They denied that any role in the process had been played by
the Romanian authorities, except for a passive, “automatic” acceptance of
the change for which the plane operator had been solely responsible and
assistance in transmitting the flight plans to the entity managing the
integrated initial flight plan processing system (see paragraph 439 above).
564. However, as already noted above, the clear inconsistencies in the
flight data pertaining to destinations where the CIA-associated aircraft were
supposed to arrive and from where they actually took off presented by the
Romanian authorities were already identified in the 2007 Marty Report and
the Fava Report (see paragraphs 264 and 512 above). Also,
Mr Hammarberg’s dossier addressed to the Romanian Prosecutor General
listed eight rendition flight circuits occurring between 22 September 2003
and 21 August 2005 in respect of which false flight plans had been filed (see
paragraph 337 above).
565. The practice of so-called “dummy” flight planning, i.e. a process of
intentional disguise of flight plans for rendition aircraft used by the air
companies contracted by the CIA, for instance Jeppesen Dataplan Inc. or
Richmor Aviation (see paragraphs 63-70 above), was explained by Senator
Marty and Mr J.G.S. in their testimony during the PowerPoint presentation
on the basis of two examples of the CIA rendition circuits through Romania
executed by plane N313P on 20-24 September 2003 and 16-28 January
2004 (see paragraphs 328 and 371 above). The experts described the
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“dummy” flight planning as “a systematic practice deployed by the CIA and
its aviation services providers to disguise CIA flights into and out of its
most sensitive operational locations”. They added that the CIA could not
execute this tactic alone since it “depended upon, however discrete, a role
played by the national counterpart authority”. The Romanian documentary
records demonstrated the landing of N313P on 25 January 2004 at
Bucharest Băneasa Airport despite the absence of a valid flight plan.
According to the experts, “this was part of a systematic practice and through
our investigations we [had] generated numerous, up to twelve instances on
which CIA rendition aircraft [had] transferred detainees into, and out of,
Bucharest, Romania” (see paragraph 373 above).
In this connection, the Court would also reiterate its above findings that
the flights N313P and N1HC marking the opening and the closure of the
CIA detention facility in Romania, flight N85VM, identified as the one that
brought the applicant into Romania and flight N308AB, identified as one of
the two possible flights on which the applicant was taken out of Romania
were concealed by the “dummy” flight planning (see paragraphs 519, 527,
531, 534-537 and 542 above)
566. As the Court found in Al Nashiri v. Poland and Husayn (Abu
Zubaydah) v. Poland, the “dummy” flight planning, a deliberate effort to
cover up the CIA flights, 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 (see Al Nashiri v. Poland, cited above, §§ 419-422;
and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424).
567. Consequently, the fact that the Romanian aviation authorities
navigated the CIA flights into Bucharest, despite the fact that the relevant
flight plans named Constanţa or Timișoara as the airports of destination and
accepted flight plans naming those destinations but navigated the planes to
Bucharest demonstrated that they knowingly assisted in the process of
disguise of the CIA planes (ibid.).
(c) Special procedure for CIA flights
568. The Government asserted that, in contrast to the circumstances in
Al Nashiri v. Poland, in Romania there had been no special procedure for
receiving the impugned flights (see paragraphs 436-440 above).
In that regard they relied on evidence from witnesses heard in the
investigation, who had not related any special treatment of the US flights
that would deviate from routine procedures for any ordinary flight (see
paragraphs 437-438 above).
569. The Court notes that, indeed, several witnesses said that they had
not heard about or seen any “clandestine passengers”, “detainees” or “any
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233
passenger especially of Arab origin” (see paragraphs 306-309 and 317-319
above) or that they had not noted “anything out of the ordinary when the
‘private planes’ [had] landed” or that there had been “no special services
provided” (see paragraphs 320 and 323 above).
570. However, the statements of several other witnesses who referred to
the “special” or “N” status flights with the US registrations contradict the
Government’s assertion.
Witness E knew about three or four such flights that landed at night time
and parked on the airport platform for about 10-15 minutes. He said that that
the only person approaching them had been witness X.
Witness G knew of the “N” flights having been announced as special
flights for which the staff had not been requested. Witness O spoke of one
plane that had been treated differently and the staff had been asked to stay in
the office and not go to the plane. Witness P knew that special flights had
been “carried out at night”; also, on one night he had seen a plane without a
call sign and a man in dark overalls and military boots walking a dog near
the plane (see paragraphs 310, 314 and 322-323 above).
Witness X, apparently the only person who had been seen approaching
the “special planes” did not explain in concrete terms what had in reality
been going on but said that his presence in the airport had been connected
with “bilateral relations” with the US” equivalent structures” and “aimed at
ensuring protocol relations during processing as well as bilateral courtesy-
setting according to diplomatic norms and international rules” (see
paragraph 299 above).
571. Witness Z, in his statement of 17 September 2013 given to the
prosecutor was more explicit. He confirmed that in the context of
Romania’s forthcoming accession to NATO “some developments or
agreements [had taken] place in relation to the American flights to be
operated by the CIA” and that, “from about 2003 onwards several contacts
had taken place in that direction and they resulted in concrete agreements
that made possible the operation of the special American flights on
Romanian territory, in different conditions than those provided for by
international customs”. He added that “those flights [had] had a special
character and they [had] not [been] under an obligation to obey usual rules
imposed on civil flights” (see paragraph 301 above).
572. Lastly, in the Court’s view, the way in which the Romanian
authorities dealt with the accident on the landing of the aircraft N478GS that
occurred on 6 December 2004 is one more element that contradicts the
Government’s above assertion as to the lack of any special treatment of the
CIA-associated flights. The incident was described in the Fava Report and
the 2007 EP Resolution, and was also related by Mr Fava at the fact-finding
hearing (see paragraphs 275, 280 and 362 above). The presence in Romania
of seven passengers on the plane which came from Bagram, Afghanistan,
was apparently concealed. Only on the TDIP’s considerable insistence did
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the Romanian authorities give them a list of passengers, all of them US
citizens with service passports. One of them was armed with a Beretta gun
and had ammunition on him. No questions were asked about the purpose of
their trip from Bagram, a place reported as hosting a CIA detention site for
the purposes of interrogations of captured terrorist-suspects (see
paragraph 362 above).
(d) Informal transatlantic meeting
573. 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.
574. In his testimony in Al Nashiri v. Poland, Mr Fava stated that the
meeting had been convened in connection with recent international media
reports, including The Washington Post and ABC News disclosures of,
respectively, 2 November 2005 and 5 December 2005, naming European
countries that had allegedly hosted CIA “black sites” on their territories (see
Al Nashiri v. Poland, cited above, §§ 306 and 434). 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.).
575. In the present case Mr Fava testified that it had emerged from the
debriefing that, at that stage, all the governments had known that this
“operational means” had been chosen by the CIA and that the extraordinary
renditions were a tool in the war against terrorism.
Mr Fava further stated that the TDIP had “never had doubts” given the
precision of the debriefing notes and the fact that in the course of their
further work they had received confirmation from Mr Bellinger, legal
advisor to Ms Rice, that the US had “never violated the sovereignty of any
EU Member States or indeed any States in in the process of accession to the
EU” and that everything what they had done “[had been] done by always
informing and asking for cooperation and never trying to prevail over the
will of the governments of the Member States” (see paragraph 361 above).
576. In the context of Romania’s knowledge of the CIA HVD
Programme, Mr Fava moreover referred to a statement of Mr Pascu, listed
in the 2007 Marty Report among the Romanian high-office holders “who
knew about, authorised and [stood] accountable” for Romania’s role in the
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235
CIA HVD Programme (see paragraph 262 above). According to Mr Fava,
Mr Pascu, as Minister of Defence, had been aware that the Romanian
authorities had not had access to certain sites which had been under the
control of the US army or intelligence services. In Mr Fava’s opinion, this
statement, although later rectified by Mr Pascu, was truthful (see
paragraph 363 above).
(e) Circumstances routinely surrounding HVDs transfers and reception at the
CIA
577. The Court considers, as it did in Al Nashiri v. Poland and Husayn
(Abu Zubaydah) v. Poland (both cited above), 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
materials describing the routine procedure for transfers of detainees between
the “black sites” (see paragraphs 48-51 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 hood and that upon
arrival at his destination was moved to the “black site” under the same
conditions.
578. The Court finds it implausible that the transportation of prisoners
on land from the planes to the CIA detention site could, for all practical
purposes, have been effected without at least the minimum assistance of the
host country’s authorities, if only to secure the area near and around the
landed planes and provide the conditions for the secret and safe transfer of
passengers. Inevitably, the Romanian personnel responsible for security
arrangements, in particular the reception of the flights and overland transit,
must have witnessed at least some elements of the detainees’ transfer to
Detention Site Black, for instance the unloading of blindfolded and shackled
passengers from the planes (see also Al Nashiri v. Poland, cited above,
§§ 330 and 437).
Consequently, the Court concludes that the Romanian authorities who
received the CIA personnel in the airport could not have been unaware that
the persons brought by them to Romania were the CIA prisoners.
(f) Public knowledge of treatment to which captured terrorist suspects were
subjected in US custody in 2002-2005
579. 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 were available in the public domain
at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland,
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AL NASHIRI v. ROMANIA JUDGMENT
cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441;
and Nasr and Ghali, cited above, § 234).
580. Before analysing that material, the Court wishes to refer to
President’s Bush 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 (see paragraph 204-209 above), did not apply to them. 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, although including a disclaimer that
even detainees “not legally entitled” to be treated humanely would be so
treated, also spoke of respecting the principles of the Geneva Conventions
“to the extent appropriate and consistent with military necessity” (see
paragraphs 31-32 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.
581. The Court would further note that from at least January 2002, when
the UN High Commissioner for Human Rights issued a statement relating to
the detention of Taliban and al-Qaeda prisoners in Guantánamo, strong
concerns were expressed publicly as to the treatment of detainees, in
particular the use of “stress and duress” methods of interrogation and
arbitrary and incommunicado detention. From January 2002 to the
publication of the Washington Post report on 2 November 2005 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 212-225 and 470-477 above).
Also, in the 2003 PACE Resolution of 26 June 2003 – of which
Romania, 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 216
above).
582. 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 and Romanian media (see
paragraphs 230-243 above). In particular, between January 2002 and May
2003 the Romanian press published a number of articles concerning
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237
ill-treatment of prisoners and the use of “violent interrogation techniques”
against captured terrorists by the CIA (see paragraphs 239-243 above).
6. The Court’s conclusions as to Romania’s alleged knowledge of and
complicity in the CIA HVD Programme
583. 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 have evolved over
time, from 2002 to the present day. A considerable part of evidence before
the Court emerged several years after the events complained of (see
paragraphs 36-59, 78-97, 251-297, 333-342 and 355-358 above; see also
Al Nashiri, cited above, § 440; and Husayn (Abu Zubaydah), cited above,
§ 442).
Romania’s alleged knowledge and complicity in the HVD Programme
must be assessed with reference to the elements that it knew or ought to
have known at or closely around the relevant time, that is to say between
22 September 2003 and 5 November 2005. However, the Court, as it has
done in respect of the establishment of the facts relating to the applicant’s
secret detention in Romania, 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 the facts occurring in the
past (see Al Nashiri v. Poland, cited above, § 440 ; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 442).
584. In its assessment, the Court has considered all the evidence in its
possession and the various related circumstances referred to above (see
paragraphs 548-582 above). Having regard to all these elements taken as a
whole, the Court finds that it has been adequately demonstrated to the
required standard of proof that the Romanian authorities knew that the CIA
operated on Romanian territory a 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 primarily based on compelling and crucial evidence
deriving from the 2014 US Senate Committee Report and, to a considerable
extent, evidence from experts.
The passages of the report about the agreement brokered between the
USA and the country hosting Detention Site Black leave no doubt as to the
fact as to the Romanian high-office holders’ prior acceptance of a CIA
detention facility 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, referred to as
a “subsidy” amounting to a redacted multiple of USD million (see
paragraph 548-549 above). The experts, with reference to the reward
received by the Romanian authorities, spoke of a “substantial sum, in the
region of ten million United States dollars” (see paragraph 384 above) or
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“more than eight million dollars” (see paragraph 391 above). However, for
the purposes of its ruling, the Court does not need, nor does it intend, to
determine the sum that was at stake.
585. The Court further attaches importance to the fact that the former
Head of State Mr Iliescu and his national-security advisor Mr Talpeş,
admitted publicly in the press interviews that the authorities had made
available to the CIA premises which, as Mr Talpeş later explained, were
located in Bucharest (see paragraphs 553-554 above). While it is true that
Witness Y and Witness Z in their testimonies before the prosecutor
contradicted the statements of Mr Iliescu and Mr Talpeş reported in Spiegel
Online, in the Court’s view their denial cannot be considered credible as
being in conflict with all other relevant materials cited above (see
paragraphs 548-559 above). In any event, as noted above, Witness Z
confirmed that a location “for actions of combating international terrorist
threats” was offered to the CIA (see paragraphs 302 and-557 above).
586. Furthermore, the disclosure in the 2014 US Senate Committee
Report demonstrates conclusively that in the autumn of 2004, when
Detention Site Black had already been operating in Romania for around one
year, the national authorities were given a presentation outlining the HVD
Programme by the chief of the CIA station and the US ambassador. The
content of that presentation as related in the report leaves no doubt as to the
fact that at the very least the Romanian authorities had learnt from the CIA
of a “full range of interrogation measures” being used against their
detainees in order to “overcome resistance” in the context of obtaining
intelligence (see paragraphs 560-561 above).
587. Furthermore, the experts, who in the course of their inquiries also
had the benefit of contact with various, including confidential, sources
unanimously and categorically stated that Romania not only ought to have
known but actually did know of the nature and purposes of the CIA
activities in the country.
Senator Marty said that the authorities “must have known that the CIA
had used their territory for transfers of prisoners in the context of the war on
terror”. Mr J.G.S. stated that “quite clearly, categorically the Romanian
authorities, at the highest level, did know of the existence of secret detention
on their territory” and that “they were aware of the precise purpose of the
rendition flights entering and exiting the country, and the conditions, or
roughly the conditions, under which the detainees were held in between
their arrivals and their departures”. Mr Hammarberg stated that “though the
operations were conducted under extreme secrecy, it is obvious that the CIA
plane could not land with its cargo and depart without agreement from high-
level Romanian decision makers”. Mr Black said that it was “clear that the
authorities were aware of [the purposes of the CIA aircraft landings in
Romania] because, among other things, they received money for it” and
that, based on the 2014 US Senate Committee Report, it was “normally
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239
common practice ... that the host country’s officials were in the know about
these facilities and the purposes of them” (see paragraphs 344, 380, 384
and 391 above).
This did not mean, the experts added, that the Romanian authorities had
known the details of what exactly went on inside Detention Site Black or
witnessed treatment to which the CIA prisoners had been subjected in
Romania. As in other countries hosting clandestine prisons, the operation of
the site was entirely in the hands of the CIA and the interrogations had been
exclusively the CIA’s responsibility (see paragraphs 344, 380 and 384
above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 443).
588. However, in the Court’s view, even if the Romanian authorities did
not, or could not, have complete knowledge of the HVD Programme, the
facts available to them, in particular those presented to them directly by
their US partners, taken together with extensive and widely available
information about 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 Romanian press (see
paragraphs 579-582 above), enabled them to conjure up a reasonably
accurate image of the CIA’s activities and, more particularly, the treatment
to which the CIA were likely to have subjected their prisoners in Romania.
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.
Consequently, the Romanian authorities had 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 Romanian territory.
It further observes that it is – as previously found in respect of Poland –
inconceivable that the rendition aircraft could have crossed the country’s
airspace, landing at and departing from its airports, that the CIA 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 its territory. Nor can
it stand to reason that activities of such a character and scale, possibly vital
for the country’s military and political interests, could have been undertaken
on Romanian territory without Romania’s knowledge and without the
necessary authorisation and assistance being given at the appropriate level
of the State authorities (see Al Nashiri v. Poland, cited above, §§ 441-442;
and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444).
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AL NASHIRI v. ROMANIA JUDGMENT
589. The Court accordingly finds it established beyond reasonable doubt
that:
(a) Romania knew of the nature and purposes of the CIA’s activities on
its territory at the material time.
(b) Romania, by entering into an agreement with the CIA on hosting
Detention Site Black, 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.
(c) Given its knowledge of the nature and purposes of the CIA’s
activities on its territory and its involvement in the execution of that
programme, Romania knew that, by enabling the CIA to detain terrorist
suspects on its territory, it was exposing them to a serious risk of treatment
contrary to the Convention.
III. ROMANIA’S JURISDICTION AND RESPONSIBILITY UNDER
THE CONVENTION
A. The parties
590. The parties’ submissions regarding the Government’s objection that
Romania lacked jurisdiction within the meaning of Article 1 of the
Convention and, consequently, could not be responsible under the
Convention are set out above (see paragraphs 395-409 above).
B. The Court
591. The Court notes that the applicant’s complaints relate both to the
events that occurred on Romania’s territory and to the consequences of his
transfer from Romania to other places where he was secretly detained (see
paragraphs 115-190 above).
In that regard, the Court would wish to reiterate the relevant applicable
principles.
1. As regards jurisdiction
592. It follows from Article 1 that States parties 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
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241
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 and Others v. France, nos. 48205/99, 48207/99
and 48209/99, § 20, judgment of 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).
593. 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
594. 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).
3. As regards the State’s responsibility for an applicant’s removal from
its territory
595. 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, § 91; Saadi v. Italy [GC], no. 37201/06,
§ 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom,
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AL NASHIRI v. ROMANIA JUDGMENT
nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 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 and Husayn (Abu
Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above,
§ 243).
596. 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).
597. Similar principles apply to cases where there are substantial
grounds for believing that, if removed from a Contracting State, an
applicant would be exposed to a real risk of being subjected to a flagrant
denial of justice (see Othman (Abu Qatada), cited above, §§ 261 and 285)
or sentenced to the death penalty (see Al-Saadoon and Mufdhi v. the United
Kingdom, no. 61498/08, § 123, ECHR 2010; Kaboulov v. Ukraine,
no. 41015/04, § 99, 19 November 2009; Al Nashiri v. Poland, cited above,
§ 456; and Husayn (Abu Zubaydah) v. Poland, cited above, § 453).
598. 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
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
AL NASHIRI v. ROMANIA JUDGMENT
243
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).
599. 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 (cited above), § 125;
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 Romanian Government’s preliminary objection
that Romania lacks jurisdiction and responsibility under the
Convention
600. The Court has duly noted that the Government, while denying that
the facts as alleged by the applicant occurred in Romania, accepted that
Romania could be responsible under the Convention if it had knowingly
permitted its territory to be used by another State for activities involving
human rights violations and if, given the public awareness of the CIA HVD
Programme, the authorities had become aware that the flights operating on
Romanian’s territory had been used for the CIA rendition operations and
that the CIA had run a secret detention facility in the country (see
paragraph 396 above).
601. Following an extensive and detailed analysis of the evidence in the
present case, the Court has established conclusively and beyond reasonable
doubt that Romania hosted CIA Detention Site Black from 22 September
2003 to 5 November 2005; that the applicant was secretly detained there
from 12 April 2004 to 6 October 2005, or, at the latest, to 5 November
2005; that Romania knew of the nature and purposes of the CIA’s activities
in its country and cooperated in the execution of the HVD Programme; and
that Romania knew that, by enabling the CIA to detain terrorist suspects on
its territory, it was exposing them to a serious risk of treatment contrary to
the Convention (see paragraphs 508-589 above).
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AL NASHIRI v. ROMANIA JUDGMENT
The above findings suffice for the Court to conclude that the matters
complained of in the present case fall within the “jurisdiction” of Romania
within the meaning of Article 1 of the Convention and are capable of
engaging the respondent State’s responsibility under the Convention.
Accordingly, the Government’s preliminary objection on these grounds
must be dismissed.
602. The Court will accordingly examine the applicant’s complaints and
the extent to which the events complained of are attributable to the
Romanian 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 VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
603. 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 Romania, he
maintained that the respondent State had violated Article 3 in enabling his
ill-treatment on its territory. Romania knew or must have known about the
CIA extraordinary rendition programme, the existence of the “black site” in
Romania and the torture and inhuman and degrading treatment to which the
CIA had subjected “high-value detainees” as part of this programme.
(2) As regards his transfer from Romania, the applicant submitted that
Romania had knowingly and intentionally enabled his transfer from its
territory in spite of there being substantial grounds for believing that there
had been a real risk of his being subjected to further treatment contrary to
Article 3 in CIA custody.
(3) The applicant also complained under Article 3 read alone and in
conjunction with Article 13 of the Convention that the Romanian authorities
had failed to conduct an effective investigation into his allegations of ill-
treatment during his detention in a CIA-run detention facility in Romania.
He also alleged that by its refusal to acknowledge, promptly and effectively
investigate and disclose details of his ill-treatment, detention, enforced
disappearance and rendition, Romania had violated his and the public’s
right to the truth under Article 3.
604. Article 3 of the Convention states:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
605. The Court will first examine the applicant’s complaint under the
procedural aspect of Article 3 about the lack of an effective and thorough
investigation into his allegations of ill-treatment when in CIA custody on
Romania’s territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland,
AL NASHIRI v. ROMANIA JUDGMENT
245
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
606. In their written pleadings, the Government underlined that the
Court had consistently held that the obligation to investigate allegations of
ill-treatment was not one of result, but one of means: not every investigation
should necessarily be successful or come to a conclusion which coincided
with the claimant’s account of events. However, it should in principle be
capable of leading to the establishment of the facts of the case and, if the
allegations proved to be true, to the identification and punishment of those
responsible. The Court had also acknowledged that the scope of the State’s
procedural obligation under Article 3, as well as the particular form of
investigation, might vary depending on the situation that had triggered that
obligation.
In their view, both the parliamentary inquiry conducted by the Romanian
Senate and the criminal investigation initiated by the applicant’s criminal
complaint of 29 May 2012 had been prompt, thorough and independent, as
required by Article 3 of the Convention. They added that in the criminal
investigation the applicant’s rights as victim had been duly recognised and
respected.
607. Referring to concerns and criticism regarding the allegedly
superficial nature of the parliamentary inquiry and the alleged abuse of State
secrecy and national security expressed in, among others, the Fava Report
and the 2011 Marty Report, the Government maintained that the authorities
had thoroughly investigated the issues of the suspicious flights and alleged
secret detention facility. In contrast to what had been claimed in the above
reports, the 2007 Romanian Senate Report had not been confined to the
defence of Romania’s official position but constituted a comprehensive
analysis of the vast material collected by the Romanian Senate Inquiry
Committee during an extensive investigation.
In particular, between January 2006 and January 2007, the committee’s
activity had consisted of twenty-one meetings for documentation review and
analysis with the leaders of the institutions and of the specialised structures;
over forty meetings with official delegations and members of the European
Council and Commission, other politicians, and journalists; six trips of the
committee’s delegations to the airports and military airbases alleged to have
been used for secret detentions and illegal prisoner transfers; hearings
involving over 200 persons, with attributions regarding flights records,
verification, coordination, and on-ground security and services; study of
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AL NASHIRI v. ROMANIA JUDGMENT
over 4,200 pages, containing relevant information for the terms of reference
of the committee.
608. As regards the submissions of the applicant and APADOR-CH
regarding the alleged secrecy of annexes to the 2008 Romanian Senate
Report (see paragraph 631 below), the Government maintained that,
notwithstanding the classification of eleven annexes to the Report, most of
the annexes had not been secret. Moreover, the information related to the
alleged suspicious flights, included in the classified annexes, had been
available to the official investigators of the PACE and the European
Parliament. As could be seen from the 2007 Romanian Senate Report, the
committee had investigated all the airports and airfields mentioned in
Eurocontrol’s documents and examined the Marty Reports and flight plans
of all the aircraft regarded as suspicious. The Romanian Senate Inquiry
Committee had also had access to the classified documents on which the
report’s conclusions relied.
In view of the foregoing, the Government asserted that the parliamentary
inquiry had been thorough and expeditious.
609. Given that the 2007 Romanian Senate Report had conclusively
established that there had been no CIA secret detention sites in Romania,
that the allegedly suspicious flights had had nothing to do with the illegal
transportation of prisoners and that there had been no evidence that
Romanian institutions or persons had knowingly or by negligence
participated in the rendition operations, there had been no legal or factual
grounds on which to conduct a criminal investigation into those matters.
However, following the applicant’s criminal complaint, the prosecution
had promptly opened an investigation. The proceedings had progressed
without delay. The investigative authorities had taken several steps in order
to clarify the facts related to the applicant’s complaint. In order to verify the
matters complained of by the applicant, internal verifications had been
performed, consisting in, among other things, sending letters to RCAA
asking it to make available flight data relating to suspicious flights and to
the relevant airports. Various ministries, for instance the Ministry of
Defence, the Ministry of Transport and the Ministry of Foreign Affairs had
been asked to provide information regarding the alleged existence of a CIA
secret prison and any material that could be relevant. Many witnesses,
including some high-ranking officials and the airport security and civil
personnel, had been heard by the prosecutor. Furthermore, a number of
requests for legal assistance had been addressed to the US authorities,
asking for specific information about the applicant, namely, whether he had
ever been brought to Romania under the US extraordinary rendition
programme and whether Romania had been involved in that programme.
Those requests had so far been unsuccessful.
610. In the Government’s submission, the material collected in the
investigation had not revealed the existence of a CIA secret detention
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247
facility. Nevertheless, the Romanian investigative authorities were
committed to taking into account the 2014 US Senate Committee Report
published in December 2014 and the subsequent speculations concerning
the so-called “black sites” on Romanian territory. The proceedings were
ongoing and their outcome could not be anticipated by the Government.
611. As regards the length of the investigation, the Government
submitted that it was true that the proceedings had been lengthy, but not
unduly so, especially considering their exceptional complexity and the
factors which had had an impact on their progress and which were beyond
the Romanian prosecution authority’s control, such as a lack of response to
requests for legal assistance on the part of the US authorities.
612. At the public hearing, the Government underlined that the
conclusions of the 2007 Romanian Senate Report had not amounted to mere
statements, but had been the result of real work done in the investigation
extending from January 2006 to January 2007, and whose value should not
be underestimated. They also underlined that the previously classified
annexes to that report had been made publicly available, in particular in the
proceedings before the Court. The annexes helped to shed some light on the
work of the Romanian Senate Inquiry Committee and demonstrated the
thorough nature of the parliamentary inquiry. The committee had requested,
and received, information concerning the purpose of the allegedly
suspicious flights, the service rendered by the civil handling agents, as well
as the diplomatic overflight requests received by the Ministry of Defence
from the United States Embassy from 2001 to 2005.
Even though the annexes had been classified up to a recent date, at no
point had the Romanian authorities tried to hide behind a wall of “State
secrecy” and national security. The relevant, albeit summarised, information
contained in the classified annexes had been disclosed together with the
report, being made available to all the interested parties.
613. The Government reiterated that the criminal investigation had been
thorough and supervised by an independent body, and that it had offered the
victim’s representatives the possibility of participating effectively in its
conduct. In that regard, they stressed that, according to the Romanian Code
of Criminal Procedure, the applicant’s representatives could have asked the
prosecutor if they could be informed about any action taken in the criminal
investigation and attend any examination of witnesses. However, no such
request had so far been received.
614. From the beginning of the investigation, the Public Prosecutor’s
Office had established an investigation plan, based on the content of the
criminal complaint and on information available in the public domain. Most
of the actions stated in this plan had already been carried out; only the
requests for legal assistance to the US authorities had remained unanswered.
All the institutions that could hold information about the flights that were
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AL NASHIRI v. ROMANIA JUDGMENT
considered suspicious in various reports had been contacted by the Public
Prosecutor’s Office and requested to submit all the relevant data.
The Prosecutor’s Office had taken a particular interest in the
identification of personnel working at Băneasa Airport on the dates of the
flights allegedly used in rendition circuits; twenty-three witnesses working
for the Border Police, for the private handling agent Romanian airport
services and for the Airport Security Department, had been heard in relation
to working procedures, rules of access and, in particular, about the “N”
flights. On the basis of the witness statements, the Public Prosecutor’s
Office had been able to determine the procedures for the landing of private
non-commercial flights and the normal processing of passengers at the time,
and whether there had been blatant breaches of these procedures in the case
of the US-registered flights.
615. The Government were convinced that the investigation had been
effective, that each and every possible lead had been considered and that
evidence had been gathered in order to establish the facts.
They accordingly invited the Court to find that the criminal investigation
in the present case had been effective and aimed at disclosing the truth in
respect of the so-called rendition programme, the alleged involvement of the
Romanian authorities in that programme and the applicant’s alleged secret
detention in Romania.
(b) The applicant
616. The applicant maintained that Romania had failed to carry out an
investigation that satisfied its obligations under Article 3 of the Convention.
In spite of their duty to investigate of their own accord any arguable claims
of Article 3 violations, and despite being on notice since November 2005 of
possible torture, ill-treatment, and incommunicado detention in a prison on
Romanian territory, the authorities had not commenced a criminal
investigation into the prison until almost seven years later, i.e., until July
2012, when they issued a preliminary response stating that they would
review the criminal complaint filed on behalf of the applicant with the
Prosecutor General in May 2012. Several years later, the criminal
investigation was still ongoing.
In that regard, the applicant emphasised that the Government had a
continuing obligation to investigate allegations of the national authorities’
involvement in serious human rights violations and to uncover the truth
behind such involvement.
617. In the applicant’s view, the Government had offered no cogent
explanation as to why the authorities had not initiated a criminal
investigation into secret CIA prisons on Romanian territory shortly after
public reports of such a prison had first surfaced and irrespective of the
growing information on the existence of the HVD Programme and
Romania’s involvement in that programme. The prosecution had shown a
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249
complete lack of interest in the topic. In addition, as set out in
Mr Hammarberg’s affidavit, the Romanian authorities had ignored his
repeated requests for an investigation and had not responded to his dossier
of evidence relating to the secret CIA prison that he had submitted to the
Prosecutor General.
618. Indeed, for several years following the applicant’s criminal
complaint no serious efforts had been made to interview witnesses with
likely knowledge of the secret CIA prison or of the suspicious rendition
flights, to investigate the Government building where the “Bright Light”
CIA detention site had been located, to speak to intelligence officials who
might have had knowledge of any agreement with the USA, to investigate
the building work that must have been done in order to convert it into a
prison, to seek to speak to the multiple sources referenced in the Council of
Europe’s and other official and unofficial investigations, or to look any
further than the previously conducted Romanian Senate’s inquiry, which
had been fundamentally flawed. To date the prosecution had made no
attempt to communicate with the Office of the Human Rights
Commissioner for the Council of Europe regarding the dossier of
information relating to the CIA prison that former Commissioner
Thomas Hammarberg had shared with the Prosecutor General in March
2012. Nor had the authorities spoken with Senator Marty about the findings
in his two reports confirming that Romania had hosted a secret CIA prison
or asked him whether he could supply relevant documents or witnesses’
names.
619. The applicant further argued that, despite the fact that the
Government had placed great weight on the Romanian Senate’s inquiry into
secret prisons, this inquiry had by its very nature been ineffective because it
had not been a criminal inquiry, and therefore had been incapable of
“leading to the identification and punishment of those responsible”. As
found in the Marty and Fava Reports, the inquiry had been superficial and
not sufficiently independent or impartial. It did not constitute a genuine
attempt to hold officials responsible; rather, it had been aimed at issuing
categorical denials of allegations relating to the CIA prison on Romanian
territory. It had overlooked extensive evidence to the contrary from valuable
and credible sources.
620. The applicant asserted that the authorities had made no attempt to
inform him of the conduct of the investigation or to involve him in the
proceedings through his counsel. It was true that, given the applicant’s
circumstances, contacting him directly would have been impossible. But
there had been no attempt whatsoever even to contact the applicant’s
representatives, let alone involve them in any way in the investigation or
inform them on the progress in the proceedings.
Furthermore, the investigation lacked transparency and there had been no
public scrutiny of the investigation. The investigative authorities in
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Romania had disclosed no information to the public about the terms of
reference of the investigation, what stage it was at, which crimes were at
issue, or when it was likely to conclude. As such, they had failed to fulfil
the public scrutiny requirement of an effective investigation. In particular, in
a case such as this, the public element of the investigation was essential to
encourage other witnesses to come forward, such as those who might have
been involved in the preparation and conversion of the ORNISS building
into a secret prison.
621. At the public hearing, the applicant reiterated once again that since
6 November 2005, when the allegations regarding Romania’s involvement
in the CIA rendition programme had been made public in the 2006 HRW
Statement, Romania had been under an obligation, promptly and of its own
motion, to initiate an investigation capable of determining all the
circumstances and possible victims.
It would have been of utmost importance for the effectiveness of the
criminal investigation to be initiated as early as possible, as the events had
been recent and important evidence, such as fresh witness testimony, could
have been gathered. If such investigations had been opened, it would have
been possible for the domestic authorities to identify the applicant as one of
the victims and to establish when he had been transferred out of Romania
and to what treatment he had been subjected. Indeed, if independent
investigators had been able to establish these facts during subsequent
research into the materials available in the public domain, it would have
been possible for official investigators as well, as long as there had been a
will and effort to follow the matter.
622. Instead, the authorities had remained passive despite the fact that
further information on the existence of the HVD Programme and the
involvement of Romania had been disclosed to the public in the following
years and that inquiries had been instituted by the Council of Europe and by
the European Parliament, resulting in detailed reports. For example, Senator
Marty’s reports had been quite specific in describing Romania’s
involvement in the programme and in calling for an investigation. The only
response had been a superficial parliamentary inquiry, falling short of all
standards under Article 3 of the Convention. No criminal investigation had
been initiated even though, under the Code of Criminal Procedure in force
at the material time, the prosecutor could open such an investigation of his
own motion and had not been bound by the findings of the parliamentary
inquiry. Nor had the mounting evidence made public since then, including
the US authorities’ official acknowledgements of the CIA secret detention
programme made as early as 2006, changed the Romanian authorities’
attitude. It had only been after the applicant had lodged a formal criminal
complaint in May 2012 that such an investigation had been opened. A closer
scrutiny of the documents produced by the Government showed that some,
although not significant, procedural steps had been taken only after notice of
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251
the application had been given to the Government. Even so, although
several years had passed since, little progress had been achieved. In fact, the
entry into force of a new Code of Criminal Procedure on 1 February 2014
had forced the prosecution to open the criminal investigation in rem;
otherwise the case would have most probably remained at a preparatory
phase. At present, the investigation was still pending against persons
unknown, after more than ten years since the first reports of Romania’s
involvement in the CIA programme had been made public.
623. The
applicant
considered
that
another
example
of
the
ineffectiveness of the investigation was the fact that there was no indication
in the investigation file that the 2014 US Senate Committee Report – which
had been widely publicised and must have been known to any diligent
investigator – had been taken into account in any way in the proceedings or
that there had been any effort to corroborate the information in the report by
gathering any additional evidence.
In fact, it appeared that the investigation had been completely stalled for
over two years. Except for obtaining two witness statements, nothing at all
had happened since 2013-2014.
624. In view of the foregoing, the applicant asked the Court to find that
the respondent State was in breach of Article 3 of the Convention since,
despite his credible claim that he had been subjected to torture, ill-treatment
and secret detention in Romania, the investigation conducted by the
Romanian authorities was not prompt, thorough, effective and sufficiently
transparent, as required by that provision.
2. The third-party interveners
(a) The UN Special Rapporteur
625. The UN Special Rapporteur on promotion and protection of human
rights and fundamental freedoms while countering terrorism, stressing that
the victim’s right to truth had been expressly recognised in a number of
international instruments negotiated under the auspices of the United
Nations, maintained that international law nowadays protected the legal
right of the victim, his or her relatives, and the public at large to seek and
obtain all relevant information concerning the commission of the alleged
violation, including the fate and whereabouts of the victim and, where
appropriate, the process by which the alleged violation had officially been
authorised. It also included the right of the victim to adequate reparation (of
which the establishment of the truth is an indispensable part). The payment
of monetary compensation without full public exposure of the truth was not
sufficient to discharge this obligation.
626. On the other side of the equation, international law imposed
corresponding obligations on States which could conveniently be gathered
under the rubric of the international law principle of accountability. This
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imposed specific duties on all three branches of government. The executive,
the judiciary and parliamentary oversight bodies, as well as independent
bodies entrusted with official responsibility for review of intelligence
matters and/or the conduct of intelligence and law-enforcement agencies,
each bore a share of the State’s responsibility to secure the realisation of the
right to truth and the principle of accountability.
627. Where a plausible allegation was made that public officials had
committed (or been complicit in the commission of) gross or systemic
human rights violations, the executive authorities of the State(s) concerned
were obliged under international law to carry out an official investigation
which had to begin promptly, secure all relevant evidence, and be capable of
leading to the identification and, where appropriate, the punishment of the
perpetrator(s) and those on whose authority the violations had been
committed. Any deficiency in the investigation which undermined its ability
to establish the identity of the persons responsible would risk falling foul of
the requisite legal standard.
628. The investigating authorities were obliged to allow the victims or
(if deceased) their relatives, effective access to the investigative process,
respecting their right to be informed and to participate, to disclose all
relevant evidence and findings to the victims (subject only to legitimate
national security limitations that were adjudged to be strictly necessary by
an independent and impartial judicial or quasi-judicial tribunal); and to
protect the physical and moral integrity of victims and witnesses against
reprisals and threats.
To meet the requirements of international law, such an investigative body
must be genuinely independent of the officials implicated in the violations.
This implied not only a lack of hierarchical or institutional connection but
also a practical independence.
629. In El-Masri the Court had acknowledged the existence of right to
truth (as such) for the first time in its jurisprudence, treating it as an aspect
of the State’s adjectival obligation under Article 3 of the Convention to
conduct an official investigation into allegations of torture.
The experience of the past decade, however, showed that there were
various means by which the right to truth and the principle of accountability
could be (and had been) frustrated, thereby perpetuating impunity for the
public officials implicated in such crimes. These included the grant of
de facto or de jure immunities; the official destruction of relevant evidence;
executive obstruction of (or interference in) independent investigations into
past practices; the assertion by the executive of unjustified claims of secrecy
on grounds of national security or the maintenance of good foreign
relations; the suppression or delayed publication of reports of independent
investigations whose findings might expose past official wrongdoing to
public scrutiny; executive inertia motivated by a desire to “draw a line”
under the past; the more or less oblique invocation of the “superior orders”
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253
defence, despite its prohibition under customary law and relevant
international treaties; and excessive judicial deference to the executive on
matters related to national security or the maintenance of good foreign
relations, with the effect of excluding the right of access to court, or
unjustifiably restricting the exposure of the facts, often on the basis of
highly dubious legal reasoning.
(b) APADOR-CH
630. APADOR-CH submitted that both the parliamentary inquiry and
criminal investigation in Romania had been inadequate for the purposes of
Article 3 of the Convention.
631. As regards the parliamentary inquiry, they stressed that it had failed
to demonstrate that it had been aimed at discovering the truth in relation to
the allegations of rendition flight landings and the existence of the CIA
secret detention facility in Romania. First of all, the Senate had clearly
stated that it had not been part of its mandate to look into the reason why
flights later proved to be used by the CIA had landed in Romania, although
its mandate had been to investigate such flights. Second, the procedure
adopted by the Romanian Senate Inquiry Committee had lacked
transparency. In particular, the annexes to the 2007 Romanian Senate
Report had never been declassified, nor had they been intended to be made
public.
632. As regards the criminal investigation, APADOR-CH maintained
that it should have been instituted promptly after the allegations of a secret
CIA prison in Romania had emerged rather than being conditional on a
criminal complaint filed by a victim.
(c) Joint submissions by Amnesty International (AI) and the International
Commission of Jurists (ICJ)
633. AI/ICJ stressed that the Convention case-law had long established
that Contracting Parties had an obligation to investigate any credible
information disclosing evidence of violations of Convention rights. Any
such investigation must be prompt, thorough, independent in law and in
practice, allowing for the participation of the victim and “capable of leading
to the identification and punishment of those responsible”.
In this context, the interveners also stressed the importance that such
investigations be initiated ex officio, rather than relying on a criminal
complaint lodged by the victims or their relatives.
634. In AC/ICJ’s submission, the above investigative obligations on
Contracting States were of particular importance in cases of renditions or
enforced disappearances in which the State authorities might be implicated
in the human rights violations.
In cases involving rendition an individual typically experienced
continuing violations of his rights outside the jurisdiction of the State where
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AL NASHIRI v. ROMANIA JUDGMENT
he had initially been apprehended. However, this did not divest Contracting
Parties of their duty to investigate credible information disclosing evidence
of involvement in renditions.
Therefore, in cases of such illegal transfers, as well as torture and
enforced disappearance, where the act or omission of a Contracting Party
had a direct causal connection with or was part of the operation of a
rendition involving a continuing violation of Convention rights, taking place
partly on its territory and partly elsewhere, the State had an obligation not
only to prevent, but also to take such investigative and remedial measures as
were available to it to investigate and remedy the continuing violation of
Convention rights.
635. The right to an effective investigation and to an effective remedy
under, inter alia, Articles 3 and 5, read together with Article 13, required
disclosure of the truth concerning the violations of Convention rights
perpetrated in the context of the secret detention and rendition programmes
This was so, not only because of the scale and severity of the human rights
violations concerned, but also and in particular because 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, or in violation of those States’ positive
obligations of prevention, the Convention obligations of those States to
investigate and provide remedies 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 those victims had
suffered within the context of these counter-terrorism operations.
(d) Media Groups
636. The Media Groups’ submission focused on open justice and the
accessibility to the public of documents adduced in the Court procedure.
They also referred to the freedom of expression in the context of grave
violations of human rights, in particular in relation to media reporting. In so
far as the applicant’s allegations of a breach of procedural obligations under
Article 3 were concerned, the third party criticised the lack of transparency
of the parliamentary inquiry in Romania.
3. The Court’s assessment
(a) Admissibility
637. 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
AL NASHIRI v. ROMANIA JUDGMENT
255
remedies and with the six-month rule should be joined to the merits of this
complaint (see paragraph 418 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
638. 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
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; Mocanu and Others
v. Romania [GC], nos. 10865/09 and 2 others, § 317, ECHR 2014 (extracts),
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).
639. 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.
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AL NASHIRI v. ROMANIA JUDGMENT
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,
;
§§ 183-185Al-Skeini and Others v. the United Kingdom [GC],
no. 55721/07, § 167, ECHR 2011; Al Nashiri v. Poland, cited above, § 486;
Husayn (Abu Zubaydah) v. Poland, cited above, § 480; and Mocanu
and Others, cited above, §§ 321-323).
640. 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).
641. 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
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
642. The Court notes that the respondent Government argued that both
the parliamentary inquiry conducted by the Romanian Senate and the
criminal investigation instituted by the prosecution had been prompt,
thorough, independent and effective, as required by Article 3 of the
Convention (see paragraphs 606-615 above).
It further notes that these two investigations were separated by several
years. The Romanian Senate’s inquiry was initiated in late December 2005,
following the PACE President’s appeal of 24 November 2005, asking the
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257
Romanian Parliament to investigate the allegations concerning the CIA
extraordinary rendition operations in Europe and the disclosures in The
Washington Post of 2 November 2005 and the 2005 HRW Statement of
6 November 2005, the latter naming Romania as one of the European
countries allegedly hosting CIA secret prisons (see paragraphs 165-166, 226
and 236 above). The criminal investigation, initiated by the applicant’s
criminal complaint, began over some six years and eight months later, in
late July 2012 (see paragraphs 171-172 above).
643. Given that the parliamentary inquiry commenced within a mere
three weeks after the disclosures suggesting that the CIA had run a secret
detention site in Romania, it cannot be said that the respondent State failed
to give a prompt response to the public allegations of Romania’s possible
complicity in the CIA HVD Programme. The Court therefore accepts the
Government’s argument that the reaction of the political bodies was swift
and that the Romanian Senate Inquiry Committee’s work progressed
reasonably quickly, in particular considering the voluminous materials
gathered and examined, as well as a number of fact-finding missions carried
out (see paragraphs 167 and 607 above). The work was accomplished within
a year, from January 2006 to January 2007, and the deadline for the final
report was set for the beginning of March 2007 (see paragraphs 165-167
above). The 2007 Romanian Senate Report was published at the beginning
of May 2008, although its annexes remained classified which, in the view of
the applicant and APADOR-CH, demonstrated a lack of transparency of the
parliamentary procedure (see paragraphs 165 and 631 above).
644. The Court does not find it necessary to establish whether, and if so
to what extent, restrictions on public access to the annexes impacted on the
adequacy of the Romanian Senate’s inquiry. For the Court’s assessment the
central question is whether that inquiry was capable of “leading to the
identification and punishment of those responsible”, which is an
indispensable element of an “effective investigation” for the purposes of
Article 3 (see paragraph 638 above).
The Court has taken into account the applicant’s arguments regarding
that issue (see paragraph 619 above). It has also had regard to the terms of
reference of the Romanian Senate’s inquiry, which were defined as
“investigating statements regarding the existence of the CIA detention
facilities or of some planes leased by the CIA on the territory of Romania”
(see paragraph 166 above). These terms of reference were further extended
to include certain particular incidents, for instance the accident suffered by
plane N478GS on landing in Bucharest on 6 December 2004 (see
paragraphs 168, 275 and 362 above). The inquiry focused on eight principal
questions regarding the existence of a CIA secret prison in Romania, illegal
transfer of detainees, suspicious aircraft and possible participation of the
Romanian authorities in the CIA scheme. They were answered in the
negative in the 2007 Romanian Senate Report’s conclusions, except for the
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AL NASHIRI v. ROMANIA JUDGMENT
question relating to the need for a parliamentary inquiry (see paragraph 169
above). None of those questions concerned the establishment of possible
responsibility of State officials in the event of their complicity in the CIA
scheme, nor was the inquiry aimed at ensuring, even in general terms, the
accountability of those who could have been involved in the execution of
the alleged CIA operations in the country. Moreover, as can be seen from
the letter of the President of the Romanian Senate to APADOR-CH of
13 October 2008, the inquiry was strictly limited to the issues set out in its
terms of reference and did not collect information regarding the purpose of
the flights in question (see paragraph 170 above).
645. In that connection, the Court would also observe that the
investigative work of the Romanian Senate Inquiry Committee overlapped
with international inquiries conducted in 2006-2007 by the PACE and the
European Parliament (see paragraphs 165-169, 246-265 and 268-280
above). It can therefore be reasonably assumed that all the simultaneously
working bodies of inquiry had similar material at their disposal. For
instance, as noted above, the list of twenty-one suspicious flights in the
declassified annex to the 2007 Romanian Senate Report included the aircraft
identified as carrying out rendition missions in the Fava Report (see
paragraphs 272-273, 276 and 327 above). Yet in contrast to the Romanian
Senate’s categorical conclusions rejecting any possibility of a CIA detention
facility having operated in Romania or the flights in question being used for
extraordinary rendition, the findings in the 2006 Marty Report and the Fava
Report pointed to a number of elements justifying at least a strong suspicion
that such a facility had existed in Romania in 2003-2005 and conclusively
identified some aircraft that stopped over in Romania as rendition planes
(see paragraphs 251-256 and 268-276 above). The 2007 EP Resolution
expressly, although with regret, called the 2007 Romanian Senate Report’s
conclusions “premature and superficial” (see paragraph 280 above).
Mr Fava, at the fact-finding hearing pointed out in respect of the Romanian
Senate’s work that “it was chosen not to check all the facts and hear all the
people who could have provided further elements”, for instance
non-governmental
organisations,
airport
staff
or
journalists
(see
paragraph 364 above).
646. Having regard to the foregoing and, in particular, to the limited
scope of the inquiry, the Court finds that the measures taken by the
Romanian Parliament cannot be regarded as an adequate and sufficient
response to serious allegations of Romania’s implication in the CIA HVD
Programme – a scheme which in the light of the widespread public
knowledge involved undisclosed detention, torture and ill-treatment of
terrorist-suspects.
647. It remains for the Court to determine whether the subsequent
criminal investigation met the requirements of Article 3.
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259
As noted above, the proceedings began in late July 2012, which was
some six years and eight months after the public disclosures indicating
Romania’s possible complicity in the CIA extraordinary rendition and secret
detention operations and over five years after the closure of the
parliamentary inquiry. The Government explained that in the light of the
2007 Romanian Senate Report’s conclusions, the authorities had had no
legal or factual grounds on which to conduct of their own motion a criminal
investigation into the same matters. However, following the applicant’s
criminal complaint, the prosecution had promptly opened an investigation
(see paragraph 609 above).
648. The Court does not share the Government’s point of view. On the
contrary, it considers that the extremely grave nature of the allegations of
human rights abuses committed during the operation of the HVD
Programme and indications of Romania’s complicity in the CIA’s activities
that emerged at the beginning of November 2005 taken together with the
subsequent findings as to Romania’s possible role in that programme in the
Fava Report and the 2006 Marty Report, required of the authorities to act of
their initiative instantly, without waiting for a victim to bring the matter to
their attention (see paragraph 639 above).
649. Pursuant to Article 221 of the old CCP, as applicable at the material
time, a criminal investigation authority had a duty to take action of its own
motion if it had discovered that an offence had been committed (see
paragraph 196 above). The 2005 HRW Statement explicitly referred to
“extremely serious activities”, “incommunicado detention”, “torture”
(describing the waterboarding interrogation technique) and “mistreatment of
detainees” (see paragraph 226 above). In the face of public allegations of
such serious criminal activity having been perpetrated on Romania’s
territory, allegations which on account of the world-wide publicity could not
have gone unperceived, the Romanian prosecution authorities had a duty to
initiate promptly a criminal investigation into the matter, notwithstanding
the conclusions of the parliamentary inquiry (see El-Masri, cited above,
§ 192; Al Nashiri v. Poland, cited above, § 491; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 485).
650. In spite of that duty and despite further disclosures and growing
public knowledge of the CIA extraordinary rendition operations – to
mention only the publication of the vast CIA declassified materials in 2009-
2010 – the authorities remained passive from the finalisation of the 2007
Romanian Senate Report in March 2007 to 20 July 2012, when the
applicant’s criminal complaint was registered (see paragraph 172 above).
Having regard to the exceptional gravity and plausibility of the allegations,
such delay must be considered inordinate (see Al Nashiri v. Poland, cited
above, § 492; and Husayn (Abu Zubaydah) v. Poland, cited above, § 486).
The fact that the applicant’s criminal complaint was lodged over six years
after the closure of Detention Site Black in Romania is not decisive and
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AL NASHIRI v. ROMANIA JUDGMENT
does not change the Court’s conclusion that the authorities bear full
responsibility for the significant delay in investigating the matter. As stated
above, the information about serious violations of Article 3 possibly
occurring in Romania in 2003-2005 which was brought to their knowledge
already in November 2005 gave rise ipso facto to an obligation to carry out
an effective investigation (see also El-Masri, cited above, § 186).
651. Furthermore, as rightly pointed out by the applicant (see paragraphs
621-622 above), the long delay in opening the criminal investigation most
likely diminished the prospects of its effectiveness. For instance, owing to
the passage of time, retention periods for storing certain data had already
expired between 2008 and 2010. As a result, important aeronautical data
was already erased from the records kept by the Romanian authorities (see
paragraphs 180-181 above).
While it is not possible to say with certainty what might have happened
had it not been for the culpable delay on the part of the authorities, the
authorities’ inaction can be seen as a factor capable of affecting adversely
the process of gathering evidence. It is entirely conceivable that more
evidence could have been secured and obtained shortly after the closure of
Detention Site Black in Romania if the prosecution authorities, with their
full range of powers available under the criminal law – powers which are by
definition stronger and more effective than those enjoyed by parliamentary
investigative bodies – had decided to act promptly.
652. As regards the procedural activity displayed by the prosecution
since May-July 2012, the Government maintained that there had been no
undue procrastination and that the investigation had progressed swiftly,
account being taken of the exceptional complexity of the case and the US
authorities’ unresponsive attitude to the requests for legal assistance. They
added that a number of important procedural steps had been taken, such as
taking evidence from a considerable number of witnesses and obtaining
information as to the alleged existence of a CIA secret prison and suspicious
flights from various Government ministries, State authorities, private
companies and airports (see paragraphs 609-610 and 614-615 above). The
applicant argued that the case had lain dormant for the last two years and
that since 2013-2014 no meaningful progress had been achieved, save for
taking statements from two witnesses. He also maintained that the
authorities had not informed his counsel of the actions taken and that, by
their failure to disclose to the public at least some elements, such as the
terms of reference of the investigation, had not ensured public scrutiny of
the proceedings (see paragraphs 620 and 622-623 above).
653. The Court does not underestimate the difficulties faced by the
Romanian prosecutors in their investigation, involving as it did a complex,
secret scheme of rendition and detention with international ramifications,
voluminous material from various sources, including classified documents,
and last, but not least, issues of national security and cooperation between
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261
the Romanian and the US intelligence services. However, as noted above,
the passage of time between the events and institution of the proceedings
must have inevitably affected the authorities’ ability to establish all the
relevant circumstances and compounded the problems with collecting
evidence. The proceedings, which have been pending for over six years, are
apparently still directed against persons unknown and no individuals
bearing responsibility for Romania’s role in the HVD Programme have so
far been identified. Neither does it seem – and nor was it pleaded by the
Government – that any information from the investigation or about its
conduct has been disclosed to the public (see paragraphs 171-190 above).
654. In that regard, the Court would emphasise that the securing of
proper accountability of those responsible for enabling the CIA to run
Detention Site Black on Romanian territory is conducive to maintaining
confidence in the adherence by the Romanian 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 and secret
detention operations in Romania and to find out what happened at the
material time. A victim, such as the applicant in the present case, who had
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 641 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). That right has to date been denied to the
applicant.
655. Moreover, the importance and gravity of the issues involved require
particularly intense public scrutiny of the investigation. The Romanian
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).
656. Having regard to its above findings as to the inadequacy of the
parliamentary inquiry and deficiencies in the criminal investigation, the
Court considers that Romania has failed to comply with the requirements of
a “prompt”, “thorough” and “effective” investigation for the purposes of
Article 3 of the Convention.
Consequently, the Court dismisses the Government’s preliminary
objections of non-exhaustion of domestic remedies and non-compliance
with the six-month rule (see paragraphs 412-418 above) and finds that there
has been a violation of Article 3 of the Convention, in its procedural aspect.
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B. Substantive aspect of Article 3
1. The parties’ submissions
(a) The Government
657. The Government contended that, having regard to Romania’s lack
of jurisdiction and responsibility under the Convention as invoked above, it
was impossible for them to make any observations on the merits of the
applicant’s complaint under the substantive limb of Article 3 of the
Convention.
(b) The applicant
658. The applicant submitted that Romania had known or must have
known about the CIA’s secret detention and extraordinary rendition
programme, the secret CIA prison in Romania, and the torture and cruel,
inhuman and degrading treatment to which the CIA had subjected high-
value detainees as part of this programme. Yet Romania had knowingly and
intentionally assisted the CIA in detaining the applicant in Detention Site
Black, thereby allowing the CIA to subject him on Romanian territory to
treatment in violation of Article 3 of the Convention.
659. In respect of the nature of the ill-treatment inflicted on him in
various CIA prisons, the applicant referred to the transcript of the hearing
held by the Combatant Status Review Tribunal in Guantánamo on 14 March
2007, as released on 15 June 2016 (see paragraph 123 above). At that
hearing he had stated that he had continually endured torture in the CIA’s
hands from the time he had been arrested in mid-October 2002 until his
transfer to military custody on 5 September 2006. During that time he had,
among other things, been hung upside down for almost a month, subjected
to waterboarding on numerous occasions, put inside a box for a week, hit
against the wall, kept in stressful positions, subjected to nudity, held in
stressful and painful positions, beaten, abused and ill-treated in many other
ways.
660. As regards the ill-treatment inflicted on him in Romania, the
applicant underlined that because of the unprecedented secrecy associated
with CIA detention and rendition operations, the publicly available
information was scarce and incomplete. Moreover, as he had already
submitted, he had been deprived of any possibility of giving a direct account
of his ordeal to the Court. However, it had transpired from the CIA
declassified documents and the 2014 US Senate Committee Report that it
was in Bucharest, in May 2004, where he was subjected to rectal feeding
after he had tried to go on hunger strike. The 2014 US Senate Committee
Report described rectal feeding as a practice applied by the CIA on
detainees “without evidence of medical necessity” and as a means of
“behaviour control”.
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It had been in Bucharest where the applicant had been subjected to all of
the standard abusive conditions of CIA detention: incommunicado solitary
confinement, blindfolds and hooding, forced shaving, continuous noise,
continuous light and leg shackling. It had been at Detention Site Black
where during the first months of their detention CIA prisoners had been
subjected to sleep deprivation, doused with water and slapped or forced to
stand in painful positions. Moreover, he had inevitably faced the constant
fear that the torture inflicted on him in Poland and other previous places of
secret detention would be inflicted on him again, leaving him in a state of
permanent anxiety caused by complete uncertainty about his fate at the
hands of the CIA.
661. The applicant submitted that the Court had expressly recognised
this form of ill-treatment in Abu Zubaydah v. Poland as being in breach of
Article 3. Indeed, torture and prisoner abuse had been the hallmark, the
standard operating procedure of the CIA secret detention programme. The
predictability of the fate of the detainees under the programme gave
sufficient grounds to believe that the applicant had been abused and
ill-treated in Romania, as well as after his transfer from the country.
662. Torture and ill-treatment endured by the applicant had caused him
significant damage, as confirmed by his above statement given before the
Combatant Stratus Review Tribunal and the fact that, as a result of his
experiences during his secret detention, he had suffered from Post-
Traumatic Stress Syndrome.
663. Lastly, the applicant contended that in the light of the Court’s
case-law, Romania had a positive obligation under Article 3 to protect him
from treatment in violation of that provision on its territory and to prevent
his transfer from Romania to other CIA secret detention facilities, thus
exposing him to further, continuing violations of Article 3. Romania’s
failure to stop or prevent the violations of his rights had amounted to a
breach of that provision.
2. The Court’s assessment
(a) Admissibility
664. 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.
(b) Merits
(i) Applicable general principles deriving from the Court’s case-law
665. Article 3 of the Convention enshrines one of the most fundamental
values of democratic societies. Unlike most of the substantive clauses of the
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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 v. France, 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 v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV; 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).
666. 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 v. Germany, 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).
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
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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).
667. 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).
668. 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 of Judgments and Decisions 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, § 509;
and 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
669. The Court has already found that the applicant’s allegations
concerning his secret detention in Romania from 12 April 2004 to 6 October
2005 or, at the latest, 5 November 2005 and his transfer from Romania to
another CIA black site on one of those latter dates have been proved before
the Court and that those facts are established beyond reasonable doubt (see
paragraphs 531-542 above).
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 paragraphs 591-602 above).
(α) Treatment to which the applicant was subjected at the relevant time
670. In the light of the material in its possession the Court has already
found that it does not appear that at Detention Site Black the applicant was
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subjected to EITs in connection with interrogations (see paragraphs 545-546
above). However, it has established beyond reasonable doubt that during his
detention in Romania 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, the blindfolding or hooding of detainees, which was
designed to disorient them and keep them from learning of 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 56-58 and 547 above). The conditions of confinement were an
integral part of the CIA interrogation 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 42, 53 and 56-58 above).
671. 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 open
air and exercise, lack of appropriate hygiene facilities and deprivation of
basic items in pursuance of interrogations (see paragraph 293 above).
672. 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 that the CIA represented to the
policymakers and others” and describes them as being “poor” and
“especially bleak early in the programme” (see paragraph 85 above). It
further states that in respect of the conditions of detention the DCI
Confinement Guidelines of 28 January set forth minimal standards and
required only that the facility be sufficient to meet “basic health needs”.
That, according to the report meant in practice that a facility in which
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detainees were kept shackled in complete darkness and isolation, with a
bucket for human waste and without heat during the winter months, met that
standard (see paragraph 56 above).
673. 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 behavioral 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 85 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 58 above).
674. As regards the applicant’s situation during his detention at
Detention Site Black, the 2014 US Senate Committee Report confirms that
in May 2004, following his hunger strike, the CIA “responded by force
feeding him rectally” (see paragraphs 126 and 158 above). Also, according
to the report, he clearly suffered serious psychological problems resulting
from treatment inflicted on him during his detention, such as “outbursts”
during debriefings” and a “continued state of depression”. He displayed
behaviour described as “unpredictable”, “disruptive” and “repeated
belligerent acts”. In July 2005 he was assessed as being “on the verge of a
breakdown” (see paragraphs 127 and 158 above).
675. 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 Romania, or the conditions
in which he was transferred to and out of Romania. 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 Romania and likewise elsewhere, following his transfer from Romania,
as an integral part of the HVD Programme (see also Al Nashiri v. Poland,
cited above, §§ 514-515).
Considering all the elements, the Court finds that during his detention in
Romania 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 caused by the past experience of torture and cruel treatment in
the CIA’s hands and fear of his future fate. Even though during that period
he had not been subjected to interrogations with the use of the harshest
methods but “debriefings”, the applicant – having beforehand experienced
the most brutal torture, for instance waterboarding, mock executions,
hanging upside down and prolonged confinement in a box (see Al Nashiri
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v. Poland, cited above, §§ 86-89, 99-102, 401 and 416-417) – 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 treatment to which the applicant must
have been subjected and its cumulative effects on him, the Court finds that it
is to be characterised as intense physical and mental suffering falling within
the notion of “inhuman treatment” under Article 3 of the Convention (see
paragraph 665 above).
(β) Court’s conclusion as to Romania’s responsibility
676. The Court has already found that Romania 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 Romanian
territory. It has also found that, given its knowledge and its involvement in
the execution of the HVD Programme Romania knew that, by enabling the
CIA to detain terrorist-suspects on its territory, it was exposing them to a
serious risk of treatment contrary to the Convention (see paragraph 589
above).
677. It is true that in the assessment of the experts – which the Court
accepts – the Romanian authorities did not know the details of what exactly
happened inside Detention Site Black or witnessed 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 torture on detainees
(see paragraphs 344, 380, 384 and 587 above).
However, under Article 1 of the Convention, taken together with
Article 3, Romania 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 668 above)
Notwithstanding the above Convention obligation, Romania, for all
practical purposes, facilitated the whole process of the operation of the
HVD Programme on its territory, created the conditions for it to happen and
,
made no attempt to prevent it from occurring. As found aboveon the basis
of their own knowledge of the CIA activities deriving from Romanian’s
complicity in the HVD Programme and from publicly accessible
information on treatment applied in the context of the “war on terror” to
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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
Romanian territory.
Accordingly, Romania, on account of its “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 its
territory (see paragraph 594 above; 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).
678. Furthermore, Romania was aware that the transfer of the applicant
to and from its territory was effected by means of “extraordinary rendition”,
that is, “an extrajudicial 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).
In these circumstances, the possibility of a breach of Article 3 was
particularly strong and should have been considered intrinsic in the transfer
(see paragraph 595 above). Consequently, by enabling the CIA to transfer
the applicant out of Romania 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.
679. 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
680. The applicant complained that Romania had enabled the CIA to
hold him on its territory in secret, unacknowledged detention, which had
been imposed and implemented outside any legal procedures. Moreover, by
enabling the CIA to transfer him from Romanian territory to other secret
CIA detention facilities elsewhere, it had exposed him to a real and serious
of risk of 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;
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(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
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
1. The Government
681. The Government reiterated their position that Romania lacked
jurisdiction and refrained from making any observations on the
admissibility and merits of the complaint.
2. The applicant
682. The applicant submitted that his secret detention in Romania had
violated Article 5 § 1 because it had not been “in accordance with a
procedure prescribed by law”. Romania had entered into an agreement with
the CIA to permit it to fly in and secretly detain detainees, including the
applicant on Romanian territory. It had also provided extraordinary security
cover for these secret detention operations.
He underlined that the Court had repeatedly held, including in El-Masri
(cited above), that unacknowledged detention was a “complete negation” of
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Article 5 guarantees and “a most grave violation of article 5”. The Grand
Chamber had further reiterated in El-Masri that “Article 5 of the
Convention laid down an obligation on the State not only to refrain from
active infringements of the rights in question, but also to take appropriate
steps to provide protection against an unlawful interference with those rights
to everyone in its jurisdiction”.
683. The respondent State had known and should have known that the
applicant had not received any legal process for his detention in the light of
the extraordinary secrecy associated with the CIA’s rendition and detention
operations. It had been on notice of the secret detention of prisoners from its
own negotiations concerning the hosting of a detention facility with the US
authorities, as well as from public sources and its diplomatic missions. Yet
Romania had assisted the CIA secret detention operations, including by
providing a detention site and extraordinary security cover for the CIA and
maintaining the secrecy associated with these operations. It had also failed
to take measures to protect the applicant from incommunicado detention
while he had been on Romanian territory. Accordingly, Romania had
violated his rights under Article 5 of the Convention.
684. Moreover, Romania’s participation in the applicant’s transfer from
the country had exposed him to the further continuing risk of
incommunicado detention in violation of Article 5 § 1. Romania had known
and should have known that the CIA had been likely to continue to subject
its prisoners – including the applicant – to incommunicado detention after
their transfer from Romanian territory. By failing to meet its positive
obligation to protect him from detention in violation of Article 5 and
knowingly and intentionally participating in his transfer despite the above
risk Romania was responsible for the length of arbitrary detention he had
endured after being transferred from its territory.
B. The Court
1. Admissibility
685. 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
686. 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
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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).
687. 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
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).
688. Although the investigation of terrorist offences undoubtedly
presents the authorities with special problems, that does not mean that they
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
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person has been taken into custody and has not been seen since (see Kurt
v Turkey, 25 May 1998, §§ 123-124, Reports of Judgments and Decisions
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
689. 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.
690. 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, 28-59, 62
and 78-97 above).
The rendition operations had 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 and ensured 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
provided by those authorities, such as customising the premises for the
CIA’s needs, ensuring security and providing the logistics were 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).
691. In respect of the applicant’s complaint under the substantive aspect
of Article 3 the Court has already found that Romania was aware that he had
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AL NASHIRI v. ROMANIA JUDGMENT
been transferred from its territory by means of “extraordinary rendition” and
that the Romanian authorities, 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 678 above).These conclusions
are likewise valid in the context of the applicant’s complaint under
Article 5. In consequence, Romania’s responsibility under the Convention is
engaged in respect of both the applicant’s secret detention on its territory
and his transfer from Romania to CIA detention elsewhere.
692. There has accordingly been a violation of Article 5 of the
Convention.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
693. The applicant further complained that Romania had violated his
rights under Article 8 by enabling the CIA to ill-treat and detain him
incommunicado on its territory and to deprive him of any contact with his
family.
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
1. The Government
694. The Government restated their position that Romania lacked
jurisdiction and responsibility under the Convention. They refrained from
making any observations on the admissibility and merits of the complaint.
2. The applicant
695. The applicant contended that his incommunicado secret detention
in Romania with no access to or contact with his family had violated
Article 8 of the Convention.
Romania had known or must have known from public sources and its
diplomatic missions of the possible torture, abuse and secret detention of the
US terrorist suspects. Nonetheless, it had agreed to host a secret CIA prison
and provide security for the CIA’s secret detention and rendition operations.
Romania had known or must have known that detainees like the applicant
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275
had been deprived of access to their family as it had helped maintain
secrecy regarding these operations. Clearly, a secret prison outside the law
did not allow for family visits. By participating in the CIA’s secret detention
of prisoners and failing to take measures to protect the applicant from such
detention without access to his family while he had been on Romanian
territory, Romania had violated his rights under Article 8.
B. The Court
1. Admissibility
696. 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
697. 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, 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,
ibid.; and Husayn (Abu Zubaydah) v. Poland, ibid.).
698. Having regard to its conclusions concerning the respondent State’s
responsibility under Articles 3 and 5 of the Convention (see
paragraphs 676-679 and 691 above), the Court is of the view that Romania’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 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
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AL NASHIRI v. ROMANIA JUDGMENT
justification under paragraph 2 of that Article (see El-Masri, cited above,
§ 249; Al Nashiri v. Poland, cited above, § 539, and Husayn (Abu
Zubaydah) v. Poland, cited above, § 533).
699. There has accordingly been a violation of Article 8 of the
Convention.
VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION
WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION
700. The applicant complained that Romania had been in breach of
Article 13 of the Convention, taken separately and in conjunction with
Articles 3, 5 and 8 on account of having failed to carry out an effective,
prompt and thorough investigation into his allegations of serious violations
of Articles 3, 5 and 8 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
701. The parties essentially reiterated their observations concerning the
procedural aspect of Article 3 of the Convention.
702. The Government maintained that that the parliamentary inquiry and
criminal 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.
703. The applicant disagreed and said that the investigation had been
initiated after a considerable delay and with marked reluctance on the part
of the Romanian authorities Despite the fact that the investigation had been
pending for over five years, no meaningful progress had been achieved.
B. The Court
1. Admissibility
704. 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 637 above). It must likewise be declared admissible.
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277
2. Merits
(a) Applicable general principles deriving from the Court
705. 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
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 of Judgments
and Decisions 1998-I; and Mahmut Kaya, cited above, § 124).
706. 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; Assenov and Others,
cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and El-Masri,
cited above, § 255).
707. 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).
708. 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, §§ 546-548;
and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 540-543).
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(b) Application of the above principles to the present case
709. 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 676-679, 691 and 698 above). The
complaints under these Articles are therefore “arguable” for the purposes of
Article 13 and that he 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 705 above; see 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 Romania fell short of the standards of the
“effective investigation” that should have been carried out in accordance
with Article 3 (see paragraph 656 above). In these circumstances, the
remedy relied on by the Government (see paragraphs 412-413 above)
cannot be regarded as “effective” in practice. For the reasons that prompted
the Court to dismiss the Government’s preliminary objection of non-
exhaustion of domestic remedies (see paragraphs 642-656 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 Romania an “effective remedy” to ventilate his claims of a
violation of Articles 3, 5 and 8 of the Convention.
710. Consequently, there has been a violation of Article 13, taken in
conjunction with Articles 3, 5 and 8 of the Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
711. The applicant complained that Romania, by enabling the CIA to
transfer him from its territory, had exposed to him to a real and serious risk
of being transferred to a jurisdiction where he would be subjected to a
flagrantly unfair trial, in breach of Article 6 § 1 of the Convention. That
provision, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and impartial by
an independent and impartial tribunal established by law.”
AL NASHIRI v. ROMANIA JUDGMENT
279
A. The parties
1. The Government
712. The Government reiterated their position that Romania lacked
jurisdiction and refrained from making observations on the admissibility
and merits of the complaint.
2. The applicant
713. The applicant maintained that by the time of his transfer from
Romania, the Romanian authorities had known or must have known that
there were substantial grounds for believing that he had faced a real risk of
being subjected to a flagrant denial of justice. The deficiencies of the
military commission rules applicable to terrorist-suspects in US custody at
that time had been publicly criticised by the Council of Europe, the Human
Rights Chamber for Bosnia and Herzegovina, various non-governmental
organisations and also in news reports. The US Government had also
published documents detailing the rules for military commissions under
which the applicant was likely to be tried.
The military commissions had been flagrantly unfair because they had
not been sufficiently independent and impartial, had been contrary to US
law and discriminatory, had admitted evidence obtained from torture and
inhuman and degrading treatment, had not respected the principle of
equality of arms, had not been public and had admitted hearsay evidence.
Despite knowing the flagrant unfairness of the US military commissions
which would be likely to try the applicant, Romania had assisted in his
transfer out of its territory.
714. Although military commission rules applicable to the applicant had
changed since the time he had been transferred from Romania, they retained
a number of deficiencies which, especially when considered in the context
of a death penalty case, cumulatively amounted to a flagrant denial of
justice under Article 6 of the Convention.
B. The Court
1. Admissibility
715. 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.
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2. Merits
(a) Applicable general principles deriving from the Court
716. In the Court’s case-law, the term “flagrant denial of justice” is
synonymous with a trial which is manifestly contrary to the provisions of
Article 6 or the principles embodied therein (see, among other examples,
Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II, and Othman
(Abu Qatada), cited above, § 258).
In Othman (Abu Qatada), citing many examples from its case-law, the
Court referred to certain forms of unfairness that could amount to a flagrant
denial of justice. These include conviction in absentia with no subsequent
possibility to obtain a fresh determination of the merits of the charge; a trial
which is summary in nature and conducted with a total disregard for the
rights of the defence; detention without any access to an independent and
impartial tribunal to have the legality of the detention reviewed, and
deliberate and systematic denial of access to a lawyer, especially for an
individual detained in a foreign country (ibid. § 259).
In other cases, the Court has also attached importance to the fact that if a
civilian has to appear before a court composed, even only in part, of
members of the armed forces taking orders from the executive, the
guarantees of impartiality and independence are open to serious doubt (see
Incal v. Turkey, 9 June 1998, §§ 68 et seq. Reports of Judgments and
Decisions 1998-IV, and Öcalan, cited above, § 112).
717. However, “flagrant denial of justice” is a stringent test of
unfairness. A flagrant denial of justice goes beyond mere irregularities or
lack of safeguards in the trial procedures such as might result in a breach of
Article 6 if occurring within the Contracting State itself. What is required is
a breach of the principles of fair trial guaranteed by Article 6 which is so
fundamental as to amount to a nullification, or destruction of the very
essence, of the right guaranteed by that Article (see Othman (Abu Qatada),
cited above, § 260)
718. The Court has taken a clear, constant and unequivocal position on
the admission of torture evidence. No legal system based upon the rule of
law can countenance the admission of evidence – however reliable – which
has been obtained by such a barbaric practice as torture. The trial process is
a cornerstone of the rule of law. Torture evidence irreparably damages that
process; it substitutes force for the rule of law and taints the reputation of
any court that admits it. Torture evidence is excluded in order to protect the
integrity of the trial process and, ultimately, the rule of law itself. The
prohibition of the use of torture is fundamental (see Othman (Abu Qatada,
cited above, §§ 264-265).
Statements obtained in violation of Article 3 are intrinsically unreliable.
Indeed, experience has all too often shown that the victim of torture will say
anything – true or not – as the shortest method of freeing himself from the
AL NASHIRI v. ROMANIA JUDGMENT
281
torment of torture (see Söylemez v. Turkey, no. 46661/99, § 122,
21 September 2006; and Othman (Abu Qatada), cited above, § 264).
The admission of torture evidence is manifestly contrary, not just to the
provisions of Article 6, but to the most basic international standards of a fair
trial. It would make the whole trial not only immoral and illegal, but also
entirely unreliable in its outcome.
It would, therefore, be a flagrant denial of justice if such evidence were
admitted in a criminal trial (see Othman (Abu Qatada), cited above, § 267;
see also Al Nashiri v. Poland, cited above, § 564; and Husayn (Abu
Zubaydah) v. Poland, cited above, § 554).
(b) Application of the above principles to the present case
719. In Al Nashiri v. Poland the Court examined a similar complaint and
found a violation of Article 6 § 1 of the Convention on the following
grounds.
At the time of the applicant’s transfer from Poland, the procedure before
military commissions was governed by the Military Order of 13 November
2001 and the Military Commission Order no. 1 of 21 March 2002 (see also
paragraphs 71-72 above).
The commissions were set up specifically to try “certain non-citizens in
the war against terrorism”, outside the US federal judicial system. They
were composed exclusively of commissioned officers of the United States
armed forces. The appeal procedure was conducted by a review panel
likewise composed of military officers. The commission rules did not
exclude any evidence, including that obtained under torture, if it “would
have probative value to a reasonable person”.
On 29 June 2006 the US Supreme Court ruled in Hamdan v. Rumsfeld
that the military commission “lacked power to proceed” and that the scheme
had violated both the Uniform Code of Military Justice and the four Geneva
Conventions signed in 1949 (see also paragraph 73 above).
The Court considered that at the time of the applicant’s transfer from
Poland there was a real risk that his trial before the military commission
would amount to a flagrant denial of justice having regard to the following
elements:
(i) the military commission did not offer guarantees of impartiality of
independence of the executive as required of a “tribunal” under the Court’s
case-law (see also paragraph 716 above, with references to the Court’s
case-law);
(ii) it did not have legitimacy under US and international law resulting
in, as the Supreme Court found, its lacking the “power to proceed” and,
consequently, it was not “established by law” for the purposes of Article 6
§ 1; and
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AL NASHIRI v. ROMANIA JUDGMENT
(ii) there was a sufficiently high probability of admission of evidence
obtained under torture in trials against terrorist suspects (see Al Nashiri
v. Poland, cited above, §§ 566- 567).
720. The Court has also attached importance to the fact that at the
material time, in the light of publicly available information, it was evident
that any terrorist suspect would be tried before a military commission.
Furthermore, the procedure before the commission raised serious worldwide
concerns among human rights organisations and the media (ibid. § 568; see
also paragraphs 75-77 above).
721. Having regard to the fact that the applicant was transferred out of
Romania on 6 October 2005 or, at the latest, on 5 November 2005 when the
same rules governing the procedure before the military commission applied
(see paragraphs 71-74 and 542 above), the same considerations are valid in
the present case.
As in Al Nashiri v. Poland, the Court would also refer to the 2003 PACE
Resolution of 26 June 2003, expressing “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 amount[ed]
to a serious violation of the right to receive a fair trial” (see paragraph 216
above). Romania, as any other member State of the Council of Europe, must
have necessarily been aware of the underlying circumstances that gave rise
to the grave concerns stated in the resolution.
Also, given the strong, publicly expressed concerns regarding the
procedure
before
the
military
commission
in
2001-2003
(see
paragraphs 75-76 above), it must have been a matter of common knowledge
that trials before the commissions did not offer the most basic guarantees
required by Article 6 § 1 of the Convention.
In view of the foregoing, the Court finds that Romania’s cooperation and
assistance in the applicant’s transfer from its territory, despite a real and
foreseeable risk that he could face a flagrant denial of justice engaged its
responsibility under Article 6 § 1 of the Convention (see also
paragraphs 597-598 above, with references to the Court’s case-law).
722. There has accordingly been a violation of Article 6 § 1 of the
Convention.
AL NASHIRI v. ROMANIA JUDGMENT
283
IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE
CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF
PROTOCOL NO. 6 TO THE CONVENTION
A. The parties
1. The Government
723. The Government reiterated their position that Romania lacked
jurisdiction and made no observations on the admissibility and merits of the
complaint.
2. The applicant
724. The applicant submitted that Romania’s participation in his transfer
out of its territory despite substantial grounds for believing that there had
been a real risk that he would be subjected to the death penalty had violated
his right to life under Article. In previous cases, the Court had found that
Article 2 prohibited the transfer of an individual to another State in such
circumstances. It had also previously found that the implementation of the
death penalty in respect of a person who had not had a fair trial would
violate Article 2.
Furthermore, in other cases the Court had found a violation of Article 3
on account of the psychological suffering associated with a post-transfer
risk of being subjected to the death penalty. It had also held that the
imposition of the death penalty following an unfair trial violated Article 3
and that there was a further violation of Article 3 where the transferred
individual was at risk of being subjected to the “death row phenomenon”.
Romania had assisted the CIA in transporting the applicant out of
Romania despite being on notice that terrorist suspects in US custody had
been likely to be subjected to the death penalty as well as an unfair trial by
the military commission. Romania’s participation in the applicant’s transfer
out of its territory also violated Article 1 of Protocol No. 6.
Lastly, the applicant emphasised that since his trial was still pending he
continued to be at risk of having the death penalty imposed on him.
Romania was therefore under a post-transfer duty to use all available means
to ensure that he would not be subjected to that penalty.
B. The Court
1. Admissibility
725. 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.
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AL NASHIRI v. ROMANIA JUDGMENT
2. Merits
(a) Applicable general principles deriving from the Court
726. Article 2 of the Convention prohibits any transfer of an individual
to another State where substantial grounds have been shown for believing
that he or she would face a real risk of being subjected to the death penalty
there (see, mutatis mutandis, Soering, cited above, § 111; Kaboulov
v. Ukraine, cited above, § 99; Al Saadoon and Mufdhi, cited above, § 123;
Al Nashiri v. Poland, cited above, § 576; see also paragraph 597 above).
727. Judicial execution involves the deliberate and premeditated
destruction of a human being by the State authorities. Whatever the method
of execution, the extinction of life involves some physical pain. In addition,
the foreknowledge of death at the hands of the State must inevitably give
rise to intense psychological suffering. The fact that the imposition and use
of the death penalty negates fundamental human rights has been recognised
by the member States of the Council of Europe. In the Preamble to
Protocol No. 13 the Contracting States describe themselves as “convinced
that everyone’s right to life is a basic value in a democratic society and that
the abolition of the death penalty is essential for the protection of this right
and for the full recognition of the inherent dignity of all human beings” (see
Al-Saadoon and Mufdhi, cited above, § 115; and Al Nashiri v. Poland, cited
above, § 577).
(b) Application of the above principles to the present case
728. As in Al Nashiri v. Poland (cited above, § 578), the Court finds that
at the time of the applicant’s transfer from Romania there was a substantial
and foreseeable risk that he could be subjected to the death penalty
following
his
trial
before
the
military
commission
(see
also
paragraphs 71-72 above). Considering the fact that the applicant was
indicted on capital charges on 20 April 2011, that those charges were
approved on 28 September 2011 and that since then he has been on trial
facing the prospect of the death penalty being imposed on him (see
paragraphs 152-156 above), that risk has not diminished.
Having regard to its conclusions concerning the respondent State’s
responsibility for exposing the applicant to the risk of a flagrant denial of
justice in breach of Article 6 § 1 of the Convention on account of his
transfer to the military commission’s jurisdiction, the Court considers that
Romania’s actions and omissions likewise engaged its responsibility under
Article 2 taken together with Article 1 of Protocol No. 6 and under Article 3
of the Convention (see paragraph 721 above)..
729. There has accordingly been a violation of Articles 2 and 3 of the
Convention taken together with Article 1 of Protocol No. 6 to the
Convention.
AL NASHIRI v. ROMANIA JUDGMENT
285
X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
730. Lastly, the applicant complained under Article 10 of the
Convention that Poland, by its refusal to acknowledge, disclose and
promptly and effectively investigate details of his secret detention,
ill-treatment and rendition, had violated his and the public’s right to the
truth under Articles 2, 3, 5 and 10 of the Convention.
Article 10 of the Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
731. The Court observes that similar complaints were raised in El-Masri
and Al Nashiri v. Poland and were declared inadmissible as being
manifestly ill-founded (see El-Masri, cited above, § 264-265; and
Al Nashiri v. Poland, cited above, §§ 581-582 ).
732. It finds no reason to hold otherwise in the present case and
concludes that this complaint must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION
733. Article 46 of the Convention reads, in so far as relevant, as follows:
“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. ..”
A. The parties
734. The applicant submitted that the Romanian Government was under
an obligation to use all available means at its disposal to ensure that the
USA would not subject him to the death penalty. He relied, among other
things, on the Court’s judgment in Al-Saadoon and Mufdhi (cited above). In
his submission, those means should include but not be limited to:
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AL NASHIRI v. ROMANIA JUDGMENT
(i) making written submissions against the death penalty to the
US Secretary of Defense, copied to the applicant’s military defence counsel;
(ii) obtaining diplomatic assurances from the US Government that they
would not subject him to the death penalty;
(iii) taking all possible steps to establish contact with the applicant in
Guantánamo Bay, including by sending delegates to meet him and monitor
his treatment in custody; and
(iv) retaining – and bearing the costs of – lawyers authorised and
admitted to practice in the relevant jurisdictions in order to take all
necessary action to protect the applicant’s rights while in US custody,
including in military, criminal or other proceedings involving his case.
735. In the applicant’s view, the nature and severity of the violations
sustained by him were comparable to the Convention violations established
the Court’s judgment in Association “21 December 1989” and Others
v. Romania (cited above). He was the victim of a large, multi-State
programme of secret transfers and detention that raised fundamental
questions under the Convention system. This was a situation that, as in
Kelly and Others v. the United Kingdom (no. 30054/96, § 118, 4 May 2001)
... “cried out for an explanation” and Romania had an ongoing duty to
conduct an effective investigation into this case. He thus argued that,
accordingly, Romania must put an end to the continuing violation of his
rights through an effective investigation, also taking into account the
importance for society in Romania and beyond to know the truth about his
ill-treatment and secret detention in Romania.
736. The Government first emphasised that the requested measures were
entirely related to the enforcement of a judgment of the Court. As the Court
had held on many occasions, this issue fell under the competence of the
States, which retained the choice of the means by which they would
discharge their legal obligation, subject to monitoring by the Committee of
Ministers.
Secondly, as opposed to Al-Saadoon and Mufdhi, in the instant case there
was no compelling evidence that the applicant had been transferred to the
USA from Romania. There was therefore no obligation on the part of the
Romanian Government to obtain binding assurances that the death penalty
would not be imposed on the applicant.
Thirdly, some of the measures suggested by the applicant would be
nonsense or would even go against international law. As the Court had
already held in Iskandarov v. Russia (no. 17185/05, judgment of
23 September 2010, § 161) “the individual measure sought by the applicant
would require the respondent Government to interfere with the internal
affairs of a sovereign State”. There was no reason to depart from these
findings in the present, similar case.
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737. In sum, the Government invited the Court to find that the
applicant’s request for individual measures had no merit and to reject it as
unsubstantiated.
B. The Court
738. 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 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; see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138,
252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited
above, § 170).
739. The Court has already found that, through the actions and inaction
of the Romanian authorities in the context of their complicity in the
operation of the CIA HVD Programme on Romania’s territory, the applicant
has been exposed to the risk of the death penalty being imposed on him (see
paragraph 728 above). Even though the proceedings against him before the
military commissions are still pending and the outcome of the trial remains
uncertain, that risk still continues. For the Court, compliance with their
obligations under Articles 2 and 3 of the Convention taken together with
Article 1 of Protocol No. 6 to the Convention requires the Romanian
Government to endeavour to remove that risk as soon as possible, by
seeking assurances from the US authorities that he will not be subjected to
the death penalty (see also Al Nashiri v. Poland, cited above, § 589).
740. The applicant also contended that the Romanian authorities were
obliged under Article 46 of the Convention to put an end to the continuing
violation of his rights by carrying out an effective investigation (see
paragraph 735 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 v. Romania, nos. 33810/07 and 18817/08,
§ 202, 24 May 2011; Benzer and Others v. Turkey, no. 23502/06,
§§ 218-219, 12 November 2013; Mocanu and Others, cited above,
§§ 314-326; see also, mutatis mutandis, Jeronovičs v. Latvia [GC],
no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide
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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).
741. In the present case, given the deficiencies of the investigative
procedures carried out in the applicant’s case, the Court has concluded that
to date Romania has failed to comply with the requirements of a “prompt”,
“thorough” and “effective” investigation for the purposes of Article 3 of the
Convention. In particular, it has found that, in the light of the material
before it, no individuals bearing responsibility for Romanian’s role in the
HVD Programme have so far been identified (see paragraphs 647-656
above). 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 (see Abuyeva and Others v. Russia,
no. 27065/05, §§ 240-241, 2 December 2010).
742. Referring to its case-law cited above (see paragraph 740 above)
regarding the kind of exceptional circumstances capable of justifying the
indication to the respondent State of individual measures under Article 46 of
the Convention, the Court considers it appropriate to give the following
indications.
First of all, having regard in particular to the nature of the procedural
violation of Article 3 found in the present case, the obligation incumbent on
Romania 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 638-641 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 Romania, treated in Romania
and thereafter removed from Romania have been elucidated further, so as to
enable the identification and, where appropriate, punishment of those
responsible.
743. It is not, however, for the Court to give any detailed, prescriptive
injunctions in that regard. 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, Abuyeva and Others v. Russia, cited
above, § 243); and Al Nashiri v. Poland (cited above), § 586, with further
references to the Court’s case-law).
XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
744. Article 41 of the Convention provides:
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289
“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.”
A. Damage
745. The applicant made no claim for pecuniary damage.
746. As regards non-pecuniary damage, he submitted that Romania’s
acts and omissions had resulted in his suffering very substantial pain and
had caused significant harm to his mental health and overall well-being.
747. Emphasising the severity of the ill-treatment to which he had been
subjected in Romania and the fact that he had endured incommunicado
detention and the violation of his right to respect for his private and family
life during his detention in Romania for a period of one year and some six
months, he asked the Court to make an award of 300,000 euros (EUR) in
that respect. In support of his claim, he cited a number of the Court’s
judgments, including Assanidze, Selmouni (both cited above), Mikheyev
v. Russia (no. 77617/01, judgment of 26 January 2006) and El-Masri (cited
above). As regards the latter, the applicant maintained that Mr El-Masri, a
victim of extremely serious violations of the Convention committed in the
framework of the extraordinary rendition operations, had endured his ordeal
for a period of four months, whereas the applicant had been secretly
detained in Romania for a much longer period. In addition, he was subject
to a criminal process, which entailed a violation of Article 6 § 1 and faced
the death penalty if convicted. Consequently, the non-pecuniary damage
that he had sustained was more severe.
748. The Government asked the Court to find that the claim was
unsubstantiated since there had been no violation of the applicant’s rights
under the Convention. Should the Court consider that the application was
admissible and that the interference with his rights called for an award of
just satisfaction, they maintained that the sum asked for was excessive in
comparison, for instance, to the award made in El-Masri.
749. 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 treatment contrary to Article 3 and his secret detention in breach
of Article 5. 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. Furthermore, the respondent State has been found responsible for
enabling the CIA to transfer him from its territory, despite the serious risk
that he could have a flagrantly unfair trial in breach of Article 6 § 1 and that
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the death penalty could be imposed on him, in violation of Articles 2 and 3
of the Convention taken together with Article 1 of Protocol No. 6 to the
Convention (see paragraphs 656, 678-679, 691-692, 698-699, 710, 722
and 729 above).
In view of the foregoing, the Court considers that the applicant has
undeniably sustained non-pecuniary damage which cannot be made good by
the mere finding of a violation.
750. 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
(see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595;
Husayn (Abu Zubaydah) v. Poland, cited above, § 567; and Nasr and Ghali,
cited above, § 348), the Court awards him EUR 100,000, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
751. The applicant made no claim for the costs and expenses incurred in
the proceedings.
752. Accordingly, there is no call to award him any sum on that account.
C. Default interest
753. 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
Romania within the meaning of Article 1 of the Convention and that the
responsibility of Romania is engaged under the Convention, and
dismisses the Government’s preliminary objection concerning a lack of
jurisdiction and responsibility;
2. 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;
3. Declares the complaints under Articles 2, 3, 5, 6 § 1, 8 and 13 of the
Convention and Article 1 of Protocol No. 6 to the Convention
admissible and the remainder of the application inadmissible;
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4. 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
out an effective investigation into the applicant’s allegations of serious
violations of the Convention, including inhuman treatment and
undisclosed detention;
5. 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 High-Value Detainee Programme in that it enabled the US
authorities to subject the applicant to inhuman treatment on its 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;
6. 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 him from its territory, in spite of a real risk that he
would be subjected to further undisclosed detention;
7. Holds that there has been a violation of Article 8 of the Convention;
8. 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
grievances under Articles 3, 5 and 8 of the Convention;
9. Holds that there has been a violation of Article 6 § 1 of the Convention
on account of the transfer of the applicant from the respondent State’s
territory in spite of a real risk that he could face a flagrant denial of
justice;
10. Holds that there has been a violation of Articles 2 and 3 of the
Convention taken together with Article 1 of Protocol No. 6 to the
Convention on account of the transfer of the applicant from the
respondent State’s territory in spite of a real risk that he could be
subjected to the death penalty;
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11. 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, EUR 100,000 (one hundred thousand
euros), plus any tax that may be chargeable in respect of non-pecuniary
damage;
(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;
12. 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
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX I
293
ANNEX I
List of abbreviations used in the Court
2001 Military Commission Order
– Military Order of 13 November 2001
on Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism issued by President George W. Bush
2002 Military Commission Order
– US Department of Defence Military
Commission Order No. 1 on Procedures for Trials by Military Commission
of Certain Non-United States Citizens in the War Against Terrorism of
21 March 2002, issued by D. Rumsfeld, the US Secretary of Defense
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)
2006 MCA
- US Congress Military Commissions Act of 2006 signed by
President George W. Bush on 17 October 2006
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)
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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)
2007 Romanian Senate Report
– Report of the Romanian Senate Inquiry
Committee for investigating statements regarding the existence of the CIA
detention facilities or of some flights of planes leased by the CIA on the
territory of Romania, published in the Official Monitor on 7 May 2008
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”
2009 MCA
– US Congress Military Commissions Act enacted on
28 October 2009
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 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
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX I
295
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
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,
APADOR-CH
- Association for the Defence of Human Rights in Romania
– the Helsinki Committee
ATS
– Air Traffic Service
CAT
– UN Committee against Torture
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”
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
EU
– European Union
296
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX I
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
HVD
- high-value detainee
HVD Programme
- High-Value Detainees 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
Convention International Rehabilitation Council for Torture
JITPS
Convention Jeppesen International Trip Planning Service
LIBE
– European Parliament’s Committee on Civil Liberties, Justice and
Home Affairs
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
Media Groups
- twelve media organisations represented by Howard
Kennedy Fsi LLP
MON
- covert action Memorandum of Notification signed by President
George W. Bush on 17 September 2001
NATO
– North Atlantic Treaty Organisation
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX I
297
new CCP
- Romanian Code of Criminal Procedure of 1 July 2010 in force
as from 1 February 2014
ODNI
- Office of the Director of National Intelligence
OGC
- CIA Office of General Counsel
OIG
– Office of Inspector General
OLC
– Office of Legal Counsel
old CCP
– Romanian Code of Criminal Procedure in force until 31 January
2014
ORNISS
– the National Registry Office for Classified Information (Oficiul
Registrului Naţional al Informaţiilor Secrete de Stat)
OSJI
– Open Society Justice Initiative
OTS
– Office of Technical Service
PACE
– Parliamentary Assembly of the Council of Europe
PICCJ
– Prosecutor’s Office attached to the Court of Cassation –
(Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție)
RAS
– Romanian Airport Services
RCAA
– Romanian Civil Aeronautical Authority (Autoritatea Aeronautică
Civilă Română)
RDI Programme
- Rendition Detention Interrogation Program
Romanian Senate Inquiry Committee
- Inquiry Committee for
investigating statements regarding the existence of the CIA detention
facilities or of some flights of planes leased by the CIA on the territory of
Romania (Comisia de anchetă pentru investigarea afirmaţiilor cu privire la
existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor
închiriate de CIA pe teritoriul României) set up by the Romanian
Parliament on 21 December 2005
ROMATSA
– Romanian Air Traffic Services Administration
TBIJ/TRP
– Bureau of Investigative Journalism and the Rendition Project
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
298
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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
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX II
299
ANNEX II
List of references to the Court
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 Decisions
1996-VI
Al Nashiri v. Poland, no. 28761/11, 24 July 2014
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,
ECHR 2011
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 December
2012
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
300
AL NASHIRI v. ROMANIA 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, § 91, 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 Decisions
1998-I
Krastanov v. Bulgaria, no. 50222/99, 30 September 2004
Kudła v. Poland [GC], no. 30210/96, ECHR 2000-XI
AL NASHIRI v. ROMANIA JUDGMENT – ANNEX II
301
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
Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, ECHR
2014 (extracts)
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR
2005-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,
ECHR 2009
Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V
