FORMER FOURTH SECTION

CASE OF AL NASHIRI v. POLAND

(Application no. 28761/11)

JUDGMENT

STRASBOURG

24 July 2014

FINAL

16/02/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

PROCEDURE

A. Written and oral procedure

B. The Polish Government’s failure to produce information and documentary evidence in the present case and in Husayn (Abu Zubaydah)

THE FACTS

I. EVIDENCE BEFORE THE COURT

II. BACKGROUND TO THE CASE

A. Terrorist attacks of which the applicant has been suspected

1. USS Cole bombing in 2000

2. MV Limburg bombing

B. The so-called “High-Value Detainees Programme”

1. The establishment of the HVD Programme

2. Enhanced Interrogation Techniques

3. Standard procedures and treatment of “High Value Detainees” in CIA custody (combined use of interrogation techniques)

4. Conditions of detention at CIA detention facilities

5. Closure of the HVD Programme

C. Role of Jeppesen Company

D. Military Commissions

1. Military Order of 13 November 2001

2. Military Commission Order no. 1

3. The 2006 Military Commissions Act and the 2009 Military Commissions Act

E. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate

III. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The applicant’s capture, transfer to the CIA’s custody and initial detention (from the end of October to 4 December 2002)

B. Transfer to Poland and detention in the “black site” in Stare Kiejkuty (from 4/5 December 2002 to 6 June 2003)

1. Transfer (4-5 December 2002)

2. Detention and ill-treatment (5 December 2002- 6 June 2003)

C. Transfer from Poland on 6 June 2003

D. The applicant’s further transfers during CIA custody (from 6 June 2003 to 6 September 2006)

E. The applicant’s detention in Guantánamo Bay and his trial before the Military Commission (from 6 September 2006 to present)

1. Hearing before the Combatant Status Review Tribunal

2. Trial before the military commission

F. Parliamentary inquiry in Poland

1. Parliamentary inquiry in Poland

2. Views regarding the inquiry expressed by international organisations

(a) Council of Europe

(b) European Parliament

G. Criminal investigation in Poland

1. Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Husayn (Abu Zubaydah) v. Poland

2. Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Abu Zubaydah v. Poland and certain materials available in the public domain

3. Views regarding the investigation expressed by international organisations

(a) United Nations

(b) Amnesty International

IV. RELEVANT DOMESTIC LAW

A. Criminal Code

1. Territorial jurisdiction

2. Offence of abuse of power

3. Statute of limitation

4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation)

B. Code of Criminal Procedure

1. Prosecution of offences

2. Classified materials

C. Laws on classified information and related ordinance

1. The laws on classified information

(a) Situation until 2 January 2011 – “the 1999 Act”

(b) Situation as from 2 January 2011 – “the 2010 Act”

2. The 2012 Ordinance

D. Law on intelligence agencies

V. RELEVANT INTERNATIONAL LAW

A. Vienna Convention on the Law of Treaties

Article 26 “ Pacta sunt servanda ”

Article 27 Internal law and observance of treaties

B. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

Article 7 Excess of authority or contravention of instructions

Article 14 Extension in time of the breach of an international obligation

Article 15 Breach consisting of a composite act

Article 16 Aid or assistance in the commission of an internationally wrongful act

C. International Covenant on Civil and Political Rights

D. The United Nations Torture Convention

E. UN General Assembly Resolution 60/147

VI. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

A. United Nations Organisation

1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002

2. Statement of the International Rehabilitation Council for Torture

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)

B. Other international organisations

1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002

2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002

3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002

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

5. Amnesty International Report 2003 – United States of America, 28 May 2003

6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003

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

8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003

9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004

10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005

11. Human Rights Watch – List of Ghost Prisoners Possibly in CIA Custody of 30 November 2005

C. 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

D. Media reports and articles

1. International media

2. Polish media

3. Interview with Mr A. Kwaśniewski, former President of Poland

VII. INTERNATIONAL INQUIRIES RELATING TO CIA SECRET DETENTIONS AND RENDITIONS OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING POLAND

A. Council of Europe

1. Procedure under Article 52 of the Convention

2. Parliamentary Assembly’s inquiry – the Marty Inquiry

(a) The 2006 Marty Report

(b) The 2007 Marty Report

(c) The 2011 Marty Report

B. European Parliament

1. The Fava Inquiry

2. The 2007 European Parliament Resolution

3. The 2011 European Parliament Resolution

4. The Flautre Report and the 2012 European Parliament Resolution

5. The 2013 European Parliament Resolution

C. The 2007 ICRC Report

D. United Nations Organisation

1. The 2010 UN Joint Study

2. The 2010 UN Human Rights Committee Observations

E. The CHRGJ Report

VIII. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT

A. Polish Border Guard’s letter of 23 July 2010

B. TDIP transcript of “Exchange of views with [M.P.], former director of Szczytno/Szymany airport in Poland”

C. Senator Pinior’s affidavit submitted to the Court in the case of Husayn (Abu Zubaydah)

IX. EXTRACTS FROM TESTIMONIES OF EXPERTS AND WITNESS HEARD BY THE COURT

A. Mr Fava

B. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah ”

C. Senator Marty

D. Mr J.G.S.

E. Senator Pinior

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION OF DOMESTIC REMEDIES

A. The parties’ arguments

1. The Government

2. The applicant

B. The Court’s assessment

II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND

A. The parties’ submissions

1. The Government

2. The applicant

B. The Court’s assessment

1. Applicable principles deriving from the Court’s case-law

(a) General principles

(b) Cases where national security or confidentiality concerns are involved

2. Application of the above principles to the present case

III. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE

A. The parties’ positions on the facts and evidence

1. The Government

2. The applicant

B. Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects

C. The Court’s conclusion on the lack of dispute as to the facts and evidence

D. The Court’s assessment of the facts and evidence

1. Applicable principles deriving from the Court’s case-law

2. Preliminary considerations concerning the assessment of the facts and evidence in the present case

3. Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory

(a) Whether the applicant’s allegations concerning the events preceding his alleged detention in Poland (capture and initial detention from the end of October to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court

(b) Whether the applicant’s allegations concerning his transfer to Poland, secret detention at the “black site” in Stare Kiejkuty and transfer from Poland to other CIA secret detention facilities elsewhere (4/5 December 2002 – 6 June 2003) were proved before the Court

4. Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme

(a) Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities

(b) Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA

(c) The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials

(d) Poland’s lack of cooperation with the international inquiry bodies

(e) Informal transatlantic meeting

(f) Relations of cooperation between the Polish intelligence and the CIA

(g) Circumstances surrounding detainees transfer and reception at the black site

(h) Other elements

(i) Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody

5. Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme

IV. RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME

A. The parties’ submissions

1. The Government

2. The applicant

B. Third-party intervener – AI/ICJ

C. Applicable general principles deriving from the Court’s case-law

1. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory

2. As regards the State’s responsibility for an applicant’s removal from its territory

3. Conclusion

V. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

A. Procedural aspect of Article 3

1. The parties’ submissions

(a) The Government

(b) The applicant

2. The third-party interveners

(a) Helsinki Foundation for Human Rights

(b) The UN Special Rapporteur

3. The Court’s assessment

(a) Admissibility

(b) Merits

B. Substantive aspect of Article 3

1. The parties’ submissions

(a) The Government

(b) The applicant

2. The Court’s assessment

(a) Admissibility

(b) Merits

VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

A. The parties’ submissions

1 The Government

2. The applicant

B. The Court’s assessment

1. Admissibility

2. Merits

(a) Applicable general principles deriving from the Court’s case-law

(b) Application of the above principles to the present case

VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

A. The parties’ submissions

1. The Government

2. The applicant

B. The Court’s assessment

1. Admissibility

2. Merits

VIII. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

A. The parties’ submissions

B. The Court’s assessment

1. Admissibility

2. Merits

(a) Applicable general principles deriving from the Court’s case-law

(b) Application of the above principles to the present case

IX. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. The parties’ submissions

1. The Government

2. The applicant

B. The Court’s assessment

1. Admissibility

2. Merits

(a) Applicable principles deriving from the Court’s case-law

(b) Application of the above principles to the present case

X. 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’ submissions

1. The Government

2. The applicant

B. The Court’s assessment

1. Admissibility

2. Merits

(a) Applicable general principles deriving from the Court’s case-law

(b) Application of the above principles to the present case

XI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

XII. APPLICATION OF ARTICLE 46 OF THE CONVENTION

XIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

In the case of Al Nashiri v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 2 and 3 December 2013 and 1, 2 and 8 July 2014,

Delivers the following judgment, which was adopted on the last of these dates.

PROCEDURE

A. Written and oral procedure

1. The case originated in an application (no. 28761/11) against the Republic of Poland 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 Hussayn Muhammad Al Nashiri (“the applicant”), on 6 May 2011.

2. The applicant was represented before the Court 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, and also by Ms N. Hollander, attorney, member of the New Mexico Bar.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, 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 Poland had enabled the CIA to detain him at the Stare Kiejkuty 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 Poland had enabled the CIA to transfer him from Poland to other CIA-run detention facilities, despite a real risk of his being subjected to further torture, ill ‑ treatment, incommunicado detention, the imposition of the death penalty and flagrantly unfair trial;

(iii) Articles 3 and 13 of the Convention in that Poland had failed to conduct an effective and thorough investigation into his allegations of serious violations of his rights protected by the Convention during his detention on Polish territory.

4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).

5. On 30 November 2011 the Vice-President of the Section gave priority to the application, in accordance with Rule 41.

6 . On 10 July 2012 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government.

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 the Helsinki Foundation for Human Rights, the International Commission of Jurists and Amnesty International, as well as from the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism (“the UN Special Rapporteur”).

8. On 22 January 2013 the Chamber decided to invite the parties and the third-party interveners to submit comments on the case in the light of the Grand Chamber’s judgment in El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.

9. On 9 July 2013 the Chamber decided that the case would be examined simultaneously with that of Husayn (Abu Zubaydah) v. Poland (no. 7511/13).

10. Subsequently, the Chamber, having consulted the parties, decided that a public hearing on the admissibility and merits be held simultaneously in both cases (Rule 63 § 1) and invited the UN Special Rapporteur to take part in the hearing. The hearing date was set for 3 December 2013.

The Chamber also decided, of its own motion, to hear evidence from a witness and from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact-finding hearing was set for 2 December 2013.

11. On 14 October 2013 the Government asked the Court to exclude, under Rule 63 § 2 of the Rules of Court, the press and the public from all oral hearing on the grounds that, in the special circumstances of the cases, the publicity would prejudice the interests of justice.

The applicant, who was asked to submit his comments, opposed the Government’s request, stating that they had failed to provide sufficient reasons. He relied on the principle of open justice.

12. Later, in respect of the Government’s request for the exclusion of the press and the public from all oral hearing, the Chamber decided that that hearing would be public, pursuant to Rule 63 § 1 of the Rules of Court. It further decided that a separate hearing in camera be held on 2 December 2013.

13. In this connection, the President of the Chamber directed that a verbatim record of all the hearings be made under Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly.

14. On 2 December 2013 the Court held a fact-finding hearing and heard evidence from experts and a witness, in accordance with Rule A1 §§ 1 and 5 of the Annex to the Rules of Court. On the same day it subsequently held a hearing in camera under Rule 63 § 2 of the Rules of Court and heard the parties’ submissions on the evidence taken. Those hearings were held in in the Human Rights Building, Strasbourg.

15. A public hearing took place in the Human Rights Building, Strasbourg, on 3 December 2013 (Rule 59 § 3).

There appeared before the Court:

(a) for the respondent Government :

Mr A. Nowak-Far , Undersecretary of State in the Ministry of Foreign Affairs,

Ms J. Chrzanowska , Agent of the Government before the European Court of Human Rights,

Mr J. Śliwa , Deputy Kraków Prosecutor of Appeal ,

Ms A. Mężykowska , co-Agent of the Government before the European Court of Human Rights,

Ms K. Górska-Łazarz , Adviser, Ministry of Foreign Affairs .

(b) for the applicant Al Nashiri:

Ms A. Singh, Counsel , Mr M. Pietrzak , Counsel, Mr R. Skilbeck , Counsel, Ms N. Hollander , Counsel.

(c) for the applicant Husayn (Abu Zubaydah):

Mr P. Hughes , Counsel, Mr B. Jankowski , Counsel, Ms H. Duffy , Counsel, Mr J. Margulies , Counsel , Mr C. Black , Adviser .

(d) for the third party in Al Nashiri :

Mr B. Emmerson , UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,

Ms A. Katulu , Adviser.

The Court heard addresses by Mr Nowak-Far, Mr Åšliwa, Ms Singh, Mr Pietrzak, Mr Hughes, Mr Jankowski and Mr Emmerson.

16. On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained in the former Fourth Section (Rule 52 § 1).

B. The Polish Government’s failure to produce information and documentary evidence in the present case and in Husayn (Abu Zubaydah)

17. On 10 July 2012, on giving notice of the application to the Government (see paragraph 6 above), the Chamber requested the Government to supply, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, materials showing the grounds on which the applicant had been granted injured person ( pokrzywdzony ) status in the investigation opened on 11 March 2008 (see also paragraphs 131–172 below) and indicating whether the fact of his detention in Poland had been established in that investigation and, if so, on what it was based.

In relation to allegations that there was a document (agreement) on the setting up and running of a secret CIA prison on Polish territory prepared by the Polish authorities, the Chamber, in case that document existed, requested the Government to supply a copy on a confidentiality basis under Rule 33 § 2 of the Rules of Court. It also asked the Government whether that document had been included in the evidence gathered during the investigation.

18. In this connection, the Chamber further decided to impose confidentiality, under Rule 33 § 2 of the Rules of Court and in the interests of national security in a democratic society, on the following documents:

1) any documents that might be produced by the Government in the future relating to the alleged CIA rendition operations in Poland or other States and the alleged participation of Poland or other States in that operation;

2) any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who had given evidence, had been charged or were otherwise implicated in the investigation; and

3) any classified materials that in the future could be requested by the Court from the Government or would be submitted of their own motion to the Court.

19. The Government were also informed that should they wish to seek specific security measures to ensure the full secrecy of that material, the Court was prepared to have such wish accommodated through appropriate procedural and practical arrangements.

20. On 5 September 2012 the Government filed their observations on the admissibility and merits of the case. In a cover letter attached to their observations they asked the Court to restrict, under Rule 33 § 2 of the Rules of Court, public access to the Government’s submissions, as well as to the applicant’s observations filed in reply, in the interest of national security in a democratic society and in view of the need to protect the secrecy of the criminal investigation conducted in Poland.

21. The Government also submitted that, since the criminal investigation in Poland was pending, they were not in a position to address in detail the Court’s questions or produce documentary evidence requested by the Court. Instead, in the same letter they stated as follows:

“[The Government] also wish to inform the Court that, to supplement the present position, an additional material will be prepared, by no later than 1 October 2012, by the Appellate Prosecutor’s Office in Kraków with regard to the course of the proceedings no. Ap VDs.12/12/S for Judges of the Court examining the present application. However, due to the need to protect the secrecy of the investigation, the material will be classified. As such, it may be made available only to Judges of the Court specified by name, in a manner and at a location that are in conformity with Polish domestic law governing the protection of classified information.

Furthermore, the Government wish to inform the Court that pursuant to Article 156 § 5 of the Code of Criminal Procedure, in the course of a preparatory proceedings case files may in exceptional circumstances be made available to third parties, subject to the approval of the prosecutor. The Government hereby declare their willingness to offer assistance in the scope of preparing and filing the relevant applications to make case files of preparatory proceedings available to the specified Judges of the Court.”

22. On 25 September 2012 the President of the Chamber acceded to the Government’s request under Rule 33 § 2. However, the Government were reminded that the Chamber had already imposed confidentiality on certain specific documents requested from the Government and that those documents had not been produced. Nor had the Government asked for an extension of the relevant time-limit.

23. In respect of the procedure proposed for the provision of the “additional material” the Government’s attention was drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States. The Government were also reminded that, in accordance with the Court’s case-law, the respondent Government could not rely on domestic legal impediments to justify a failure to furnish the facilities necessary for the Court’s examination of the case. It was also recalled that they had already been informed that the Court was prepared to accommodate their security concerns by means of appropriate security arrangements.

24. By 1 October 2012 the Government had not supplied any “additional material” referred to in their letter of 5 September 2012 (see paragraph 21 above). Nor did they produce the documents initially requested by the Court (see paragraphs 17-18 above).

25. On 31 October 2012 the applicant’s representatives asked the Court to reconsider the status of confidential and ex parte submissions in the case. First, they objected to the Polish Government’s proposal to submit documents to the Court on an ex parte basis, submitting that this was not envisaged in the Convention or the Rules of Court.

Second, they drew the Court’s attention to the fact that the Government had expressly conceded that they could not provide the documents requested by the Court and that their written observations did not contain any information which was subject to the secrecy of the investigation or which otherwise required confidentiality. On the contrary, their submissions had been limited to information largely in the public domain and legal arguments which should not be withheld from the public.

26. The Government, having been invited by the Court to state their position on whether the confidentiality of the parties’ pleadings should be maintained, responded on 29 November 2012. They asked the Court to uphold the restrictions on the public access to the file.

27. In respect of the “additional material” prepared by the Polish prosecution authority, they stated:

“Finally, the Government would like to address the question of ex parte submission which is offered by the Government in their letter of 5 September 2012. The classified document in question was prepared by the Appellate Prosecutor in Kraków in the declared time-limit and this information was passed to the Registrar of the Fourth Section during his visit in Warsaw. Therefore hereby the Government wish to inform that the said material is available to Judges of the Court and the Government wish to kindly ask the Court to specify the name of Judges and appropriate time when they could acquaint themselves with the document.

Simultaneously the Government wish to declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure.

The above-mentioned classified document was not created by the Government as such, but by the Appellate Prosecutor’s Office in Kraków. Therefore, it is available in the Secret Registry of the Prosecutor General Office, an organ independent of the Government. In order to protect the secrecy of the conducted investigation only the authorized persons can acquaint themselves with the deposited material.”

28. On 22 January 2013 the Chamber decided to discontinue the application of Rule 33 § 2 of the Rules of Court and to lift confidentiality in respect of the observations submitted by the Government and the applicant. The parties were informed that this was without prejudice to any future decision of the Chamber or its President to impose confidentiality on any pleadings or materials that might subsequently be produced in the case where reasons were shown to justify such a decision.

29. On 14 February 2013 the Government renewed their proposal to assist the Court in applying to the Kraków Prosecutor of Appeal for access to the investigation file and other materials – to which they referred to as a “special document” – prepared for the Court by the prosecution authority. They stated that they wished to “declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case file”.

In reply, the Court informed the Government that the conditions that they had attached to the Court’s access to those documents and the manner they had proposed for the Court to proceed were not in accordance with the Court’s Rules and practice. It was recalled that, in the Court’s letter of 25 September 2012, the Government’s attention had been drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States.

The Government were accordingly invited to produce the “special document” prepared by the Kraków Prosecutor of Appeal. It was stressed that, as they were aware, that document was to be included in the Court’s file as a material which would be considered to be, and would remain, confidential pursuant to the Chamber’s decision of 10 July 2012 to impose confidentiality on, inter alia , “any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who ha[d] given evidence, ha[d] been charged or were otherwise implicated in the investigation”. It was once again stressed that the Court was prepared to accommodate the Government’s security considerations by means of all appropriate security arrangements.

Lastly, the Government’s attention was drawn to the Contracting Parties’ duty under Article 38 of the Convention to “furnish all necessary facilities” for the effective conduct of the proceedings before the Court and of the parties’ duties to cooperate with the Court, to comply with an order of the Court and to participate effectively in the proceedings, as provided in Rules 44A, 44B and 44C.

30. On 16 September 2013 the Government filed their written observations on the admissibility and merits in Husayn (Abu Zubaydah ). In those observations, in the section entitled “Means available to the Court to acquaint itself with case files of preparatory proceedings” they again suggested that the Court should apply to the domestic authorities for access to the investigation file. They also offered to ask the prosecution authority to prepare for the Court a document, to which they referred to as a “comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S.”. The relevant part of their pleading read as follows:

“[T]he Government would like to indicate that there are means available for the Court to acquaint itself with the case file Ap. V Ds 12/12/S. In the course of domestic preparatory proceedings, case files may be made available, in exceptional circumstances, to third parties, subject to the approval of the prosecutor. The Government wish to declare their willingness to offer the Court their assistance in preparing and filling the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure. ...

Moreover, the Government would like to inform the Court that, upon its request, they will ask the Appellate Prosecutor’s Office in Kraków to draw up a comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S. Such document will be classified in order to protect the secrecy of the investigation. Consequently, the document could be made available to the Court in the seat of the General Prosecutor’s Office in Warsaw or in the Permanent Representation of the Republic of Poland to the Council of Europe in Strasbourg. ...”

31. On 3 October 2013 the Court informed the Government that it had decided to hold an oral hearing in the present case and in the case of Husayn (Abu Zubaydah) simultaneously. The Government and the applicants were informed that if they intended to rely on any additional documentary evidence at the hearing, it should be submitted at least three weeks before the hearing or be incorporated verbatim in their oral submissions.

With reference to the Government’s observations on “Means available to the Court to acquaint itself with case files of preparatory proceedings” in Husayn (Abu Zubaydah) , in particular regarding the conditions that they attached to the Court’s access to the documents and information necessary for the examination of the cases, including the non-confidential part of the investigation file, the Government were informed that the Chamber, having considered their submissions, wished to remind them of the Polish State’s duties under Article 38 of the Convention (duty to furnish all necessary facilities for the Court’s examination of the case) and under Rule 44A (duty to cooperate with the Court). It also wished to remind them of the content of Rule 44B (failure to comply with an order of the Court) and Rule 44C (failure to participate effectively).

In that context, as already observed in the present case in regard to similar restrictions imposed by the Government on the Court’s access to evidence, it was recalled that those conditions and the manner proposed for the Court to proceed were not in accordance with the Court’s Rules and practice and that in processing evidence the Court was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States.

The Chamber also decided to remind the Government again that, according to the Court’s established case-law, the Contracting States should furnish all necessary facilities to make possible a proper and effective examination of applications and that they could not rely on domestic impediments to justify a failure to discharge this duty. It was stressed that, in particular, in a case where an application raised issues concerning the effectiveness of the criminal investigation, their duty under Article 38 included the submission of documents from that investigation since the latter were fundamental to the establishment of the facts by the Court.

Accordingly, the Government were invited to produce in respect of both cases, by 30 October 2013, the document referred to in their observations of 16 September 2013 in Husayn (Abu Zubaydah) as a “comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S”.

32. The Government failed to submit the document within the time-limit set by the Court. No extension of that time-limit was requested.

33. However, in a letter of 30 October 2013 the Government informed the Court that the extract from the non-confidential part of the investigation file had been prepared “by the date indicated by the Court”. They stated that since the document was classified in order to protect the secrecy of the investigation, it would be “made available to the Court pursuant to conditions agreed between the Government and the Court”. They added that the same document would be available to the, in their words, “enumerated” representatives of the two applicants.

34. On 5 November 2013 the Court informed the Government that the Chamber wished them to deliver the document in question to the Registrar of the Fourth Section in the Court’s premises, either by a person authorised by them or by hand-delivered courier by 12 November 2013 at the latest, that is, the date already fixed by the Chamber for submission by the parties of any additional documentary evidence on which they sought to rely at the oral hearing (see paragraph 31 above). The Government were informed that the said time-limit, given the date set for the hearing and the need to ensure the orderly proceedings before the Court, would not be extended. It was recalled that it was for the Court to make the appropriate internal security arrangements ensuring confidentiality of that document and its availability to the representatives of the two applicants.

Consequently, the Government were invited to produce the document in the manner and within the time-limit specified by the Court.

35. The Government failed to produce the document within the prescribed time-limit. In their letter of 12 November 2013 they stated, among other things, as follows:

“As it was already mentioned in the previous Government’s letters the document prepared by the Appellate Prosecutor’s Office in Kraków is classified with the purpose to protect the secrecy of the investigation. The Government offered to produce the document to the Court pursuant to conditions agreed between the Government and the Court. At the same time the Government offered that the same document would be available for the enumerated applicants’ plenipotentiaries.

The Government of Poland are perfectly aware that the Court is the master of the proceeding before it and therefore it is up to the Court to arrange the conditions assuring the confidentiality of submitted documents. However, the general provisions contained in the Court’s Rules of procedure do not indicate in any way the manner in which fragile documents produced by the parties, especially states, to the Court are to be protected. This situation is hardly comparable with internal regulations of other international judicial bodies. ...

Therefore the Government cannot accept the assumption taken by the Court that the conditions for submitting by Polish authorities the relevant document have been fulfilled. The Government reiterate their previous offer according to which the said document will be made available to the judges of the Court and enumerated plenipotentiaries of the applicants in the premises of the Permanent Representation of the Republic of Poland to the Council of Europe or in the office of the General Prosecutor in Warsaw. Furthermore, the Government wishing to come up as far as possible with the expectations of the Court wish to declare that they are ready to bring the document in question to the hearing on 2 [December] Monday 2013 which is to be conducted in camera in order that the Judges of the Court and enumerated plenipotentiaries of the applicants acquaint themselves with its content.”

36. On 2 December 2013, at the close of the fact-finding hearing (see also paragraph 15 above), the representatives of the Government informed the Court that they had brought the document in question by ad hoc diplomatic post. They further stated, inter alia , that:

“This is a classified document, which would enable the judges to understand better the details of the investigation. It contains more information about the activities of the Polish prosecutor’s office with respect to the cases that are the subject of today’s session. Given the Polish regulations concerning classified documents, access to these materials would be possible today for the judges who are involved in the hearing, the interpreters and the Polish representatives of the parties. ...

[We will be handing the document to the Court], except that the document could be reviewed in the course of the hearing and in accordance with our national rules and it would have to be returned and taken back by us because it is a classified document. ...

[We] could find compatibility between [the Court’s] rules and our rules, but becoming acquainted with the document must be here in situ , here and now. ...”

37. The applicants’ representatives, who were asked to comment on the Government’s proposal, stated that the limitation of access to only Polish representatives of the two applicants would be extremely onerous in terms of their ability to represent effectively their interests. Moreover, the representatives said that they were not aware of any regulation under Polish law that would justify such prohibition. They added that they needed time to become acquainted with the material and that accepting the Government’s proposal would force them to react to a possibly very important document, for submission of which the deadline had long since passed, on an ad hoc and immediate basis.

38. At the fact-finding hearing and the hearing in camera the counsel for Mr Al Nashiri and Mr Abu Zubaydah confirmed that during the investigation they had obtained access to the non-confidential part of the case file and, to some extent, to confidential material contained therein.

39. Having deliberated on the Government’s proposal, the Chamber:

1) reminded the Government that they had already been given several deadlines for submission of the document;

2) reminded them of the Court’s case-law on the cooperation with the Court in order to make the system of individual petition under Article 34 of the Convention effective;

3) reiterated the relevant principles, in particular those regarding the submission of classified documents in the proceedings before the Court, as recently stated in the case of Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 202-206;

4) directed that the Government supply the document in question in a redacted form (for instance, in the manner described in Janowiec and Others, § 206) to the Court and the other parties either on the next day (if they were able to do so) or within two weeks thereafter.

40. The Government failed to produce the requested, redacted document.

In their letter of 17 December 2013, they informed the Court that, although they were well aware of the fact that the Court was the master of its proceedings and that it was up to the Court to decide about conditions that would ensure protection of confidentiality of submitted documents, the Rules of Court did not specify the manner in which sensitive documents from the parties, especially the States, were to be protected. There were no specific provisions regulating how classified documents submitted by the States should be handed over, stored and made available.

On this occasion, they submitted that “the document brought to Strasbourg ... had been drafted on the basis of unclassified files and also, in part, on the basis of classified files”.

The Government further stated that “the Court [had] refused to make use” of any of the means of becoming acquainted with the document in question suggested by them on the grounds that this was inconsistent with the Court’s rules and practice “without indicating the legal basis of its decision and examples of that practice”. They considered that, despite their repeated requests, the Court did not show “any understanding for the Polish Government’s good will arising from a profound respect for the Convention and the Court”.

On the expiry of the time-limit fixed by the Chamber for submission of the document in question, the oral and written procedure in the case was closed.

Following the closure, on 20 March and 25 April 2014 respectively, the Government asked to Court to include in the case file their additional submissions, in particular information concerning the actions recently undertaken in the investigation. However, the President refused those requests since the pleadings were unsolicited and filed outside the time-limit fixed by the Chamber (Rule 38 § 1 of the Rules of Court and paragraph 6 of the practice direction on written pleadings).

THE FACTS

41. The applicant was born in 1965. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba.

I. EVIDENCE BEFORE THE COURT

42. In order to establish the facts of the case the Court based its examination on documentary evidence which had mostly been supplied by the applicant and, to some extent, supplemented by the Government (see paragraphs 131-140 below), the observations of the parties, material available in the public domain (see paragraphs 213-302 below ) and the testimony of experts and a witness who gave oral evidence before the Court at the fact-finding hearing held on 2 December 2013 (see paragraph 14 above).

In the course of that hearing the Court, with the participation of the parties, took evidence from three expert-witnesses, namely:

(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 also paragraphs 266-272 below);

(2) Senator Dick Marty, in his capacity as the Parliamentary Assembly of the Council of Europe’s Rapporteur in the inquiry into the allegations of CIA secret detention facilities in the Council of Europe’s member States (“the Marty Inquiry”; see also paragraphs 244-265 below);

(3) Mr J.G.S., in his capacity as an advisor to Senator Marty in the Marty Inquiry;

In the course of giving evidence to the Court, Senator Marty and Mr J.G.S. also made a PowerPoint presentation entitled: “Distillation of available documentary evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah ”.

43. The Court further heard evidence from a witness – Senator Józef Pinior, in connection with his affidavit made in Husayn (Abu Zubaydah) and his involvement in the work of the TDIP (see paragraphs 267 and 303 below).

44. The relevant passages from the witnesses’ testimony are reproduced below (see paragraphs 304-338 below).

II. BACKGROUND TO THE CASE

A. Terrorist attacks of which the applicant has been suspected

1. USS Cole bombing in 2000

45. 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 the 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 the suspect in this bombing. He has been suspected of masterminding and orchestrating the attack (see also paragraphs 114 and 122 below).

2. MV Limburg bombing

46. 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 m 3 ) 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 paragraph 122 below).

B. The so-called “High-Value Detainees Programme”

47. After 11 September 2001 the US Government began operating a special interrogation and detention programme designed for suspected terrorists. On 17 September 2001 President Bush signed a classified Presidential Finding granting the Central Intelligence Agency (“the CIA”) extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned.

48. On an unspecified later date the CIA established a programme in the Counterterrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as “the CTC program” (see also paragraph 51 below) but, subsequently, it was also called “the High-Value Detainees Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 244-261 below). For the purposes of the present case, it is referred to as “the HVD Programme”.

1. The establishment of the HVD Programme

49. On 24 August 2009 the American 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.

50. 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 Counterterrorist Centre (“CTC”) to detain and interrogate terrorists at sites abroad.

51. The background of the HVD Programme was explained in paragraphs 4-5 as follows:

“4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high ‑ value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized 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.”

52. 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 “HVD”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “High ‑ Value Targets” (“HVT”).

The applicant fell into this category.

2. Enhanced Interrogation Techniques

53. 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”), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided “the foundation for the policy and administrative decisions that guided the CTC Program”.

54. The EITs are described in paragraph 36 of the 2004 CIA Report as follows:

“ [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.

[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.

[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.”

55. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003) refers to “legally sanctioned interrogation techniques”.

It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”.

The techniques included, in ascending degree of intensity:

1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).

2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.

56. 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.

57. 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 blackened. 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. ...”

58. 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, waterboard – the name of the twelfth EITs was redacted.

59. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah.

According to the report, “this resulted in the production of an undated and unsigned document entitled “Legal principles Applicable to CIA Detention and Interrogation of Captured Al’Qaeda Personnel”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages:

“...the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the 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 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.

60. As established in paragraph 51 of the report, in November 2002 CTCinitiated training courses for CIA agents involved in interrogations. On 28 January 2003 formal “Guidelines on Confinement Conditions for CIA Detainees” and “Guidelines on Interrogations Conducted Pursuant to [REDACTED]” were approved (paragraph 50).

61. 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)

62. 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 HVD – in CIA custody were routinely subjected from their capture through their rendition and reception at a CIA “black site” to the interrogation. It “focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee’s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation” (see also El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 124, ECHR 2012).

63. 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”.

64. The said “predictable set of events” following the capture started from 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.”

65. 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.”

66. The second section, entitled “Transitioning to Interrogation - The Initial Interview”, deals with the stage before the application of EITs. It reads:

“Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation.”

67. The third section, “Interrogation”, which is largely redacted, describes the standard combined application of interrogation techniques defined as 1) “existing detention conditions”, 2) “conditioning techniques”, 3) “corrective techniques” and 4) “coercive techniques”.

1) The part dealing with the “existing detention conditions” reads:

“Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD’s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD.”

2) The “conditioning techniques” are related as follows:

“The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are

a. Nudity . The HVD’s clothes are taken and he remains nude until the interrogators provide clothes to him.

b. Sleep Deprivation . The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.

c. Dietary manipulation . The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.”

3) The “corrective techniques”, which were applied in combination with the “conditioning techniques”, are defined as those requiring “physical interaction between the interrogator and detainee” and “used principally to correct, startle, or to achieve another enabling objective with the detainee”. They are described as follows:

“These techniques – the insult slap , abdominal slap , facial hold , and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:

a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee’s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.

b. Abdominal Slap . The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical,

c. Facial Hold . The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator’s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.

d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.”

4) The “coercive techniques”, defined as those placing a detainee “in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators”, are described as follows:

“These techniques – walling , water dousing , stress positions , wall standing , and cramped confinement – are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:

a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.

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.”

68. 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”.

It reads as follows:

“1) [REDACTED]

2) Session One

a. The HVD is brought into the interrogation room, and under the direction of the interrogators, stripped of his clothes, and placed into shackles.

b. The HVD is placed standing with his back to the walling wall. The HVD remains hooded.

c. Interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [REDACTED].

d. The interrogators remove the HVD’s hood and [REDACTED] explain the HVD’s situation to him, tell him that the interrogators will do what it takes to get important information, and that he can improve his conditions immediately by participating with the interrogators. The insult slap is normally used as soon as the HVD does or says anything inconsistent with the interrogators’ instructions.

e. [REDACTED] If appropriate, an insult slap or abdominal slap will follow.

f. The interrogators will likely use walling once it becomes clear that the HVD is lying, withholding information, or using other resistance techniques.

g. The sequence may continue for several more iterations as the interrogators continue to measure the HVD’s resistance posture and apply a negative consequence to the HVD’s resistance efforts.

h. The interrogators, assisted by security officers (for security purposes), will place the HVD in the center of the interrogation room in the vertical shackling position and diaper the HVD to begin sleep deprivation . The HVD will be provided with Ensure Plus - (liquid dietary supplement) - to begin dietary manipulation . The HVD remains nude . White noise (not to exceed 79db) is used in the interrogation room. The first interrogation session terminates at this point.

i. [REDACTED]

j. This first interrogation session may last from 30 minutes to several hours based on the interrogators’ assessment of the HVD’s resistance posture. [REDACTED] The three Conditioning Techniques were used to bring the HDV to a baseline, dependent state conducive to meeting interrogation objectives in a timely manner. [REDACTED].

3) Session Two.

a. The time period between Session One and Session Two could be as brief as one hour or more than 24 hours [REDACTED] In addition, the medical and psychological personnel observing the interrogations must advise that there are no contra indications to another interrogation session.

b. [REDACTED]

c. Like the first session, interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [REDACTED].

d. [REDACTED] Should the HVD not respond appropriately to the first questions, the interrogators will respond with an insult slap or abdominal slap to set the stage for further questioning.

e. [REDACTED] The interrogators will likely use walling once interrogators determine the HVD is intent on maintaining his resistance posture.

f. The sequence [REDACTED] may continue for multiple iterations as the interrogators continue to measure the HVD’s resistance posture.

g. To increase the pressure on the HVD, [REDACTED] water douse the HVD for several minutes. [REDACTED].

h. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point,

i. As noted above, the duration of this session may last from 30 minutes to several hours based on the interrogators’ assessment of the HVD’s resistance posture. In this example of the second session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, and abdominal slap. The three Conditioning Techniques were used to keep the HVD at a baseline, dependent state and to weaken his resolve and will to resist. In combination with these three techniques, other Corrective and Coercive Techniques were used throughout the interrogation session based on interrogation objectives and the interrogators’ assessment of the HVD’s resistance posture.

4) Session Three

a. [REDACTED] In addition, the medical and psychological personnel observing the interrogations must find no contra indications to continued interrogation.

b. The HVD remains in sleep deprivation, dietary manipulation and is nude .[REDACTED].

c. Like the earlier sessions, the HVD begins the session standing against the walling wall with the walling collar around his neck.

d. If the HVD is still maintaining a resistance posture, interrogators will continue to use walling and water dousing . All of the Corrective Techniques, ( insult slap , abdominal slap , facial hold , attention grasp ) may be used several times during this session based on the responses and actions of the HVD. Stress positions and wall standing will be integrated into interrogations. [REDACTED]. Intense questioning and walling would be repeated multiple times.[REDACTED].

Interrogators will often use one technique to support another. As an example, interrogators would tell an HVD in a stress position that he (HVD) is going back to the walling wall (for walling) if he fails to hold the stress position until told otherwise by the HVD. This places additional stress on the HVD who typically will try to hold the stress position for as long as possible to avoid the walling wall. [REDACTED] interrogators will remind the HVD that he is responsible for this treatment and can stop it at any time by cooperating with the interrogators.

e. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point.

In this example of the third session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, abdominal slap, stress positions, and wall standing.

5) Continuing Sessions.

[REDACTED] Interrogation techniques assessed as being the most effective will be emphasized while techniques with little assessed effectiveness will be minimized.

a. [REDACTED]

b. The use of cramped confinement may be introduced if interrogators assess that it will have the appropriate effect on the HVD.

c. [REDACTED]

d. Sleep deprivation may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit. Sleep deprivation will end sooner if the medical or psychologist observer finds contra indications to continued sleep deprivation.

e. [REDACTED].

f. [REDACTED]

g. The interrogators’ objective is to transition the HVD to a point where he is participating in a predictable, reliable, and sustainable manner. Interrogation techniques may still be applied as required, but become less frequent. [REDACTED]

This transition period lasts from several days to several weeks based on the HVDs responses and actions.

h. The entire interrogation process outlined above, including-transition, may last for thirty days. [REDACTED] On average, the actual use of interrogation technique can vary upwards to fifteen days based on the resilience of the HVD [REDACTED]. If the interrogation team anticipates the potential need to use interrogation techniques beyond the 30-day approval period, it will submit a new interrogation plan to HQS [CIA headquarters] for evaluation and approval.”

4. Conditions of detention at CIA detention facilities

69. From 2003 to 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees, signed by the CIA Director, George Tenet, on 28 January 2003.

According to the guidelines, at least the following “six standard conditions of confinement” were in use in 2003:

(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;

(v) continuous light such that ‘each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminate the cell to about the same brightness as an office;

(vi) use of leg shackles in all aspects of detainee management and movement.

70. 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. Closure of the HVD Programme

71. 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 Guantànamo Bay.

C. Role of Jeppesen Company

72. Jeppesen Dataplan 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.

73. In the light of reports on rendition flights (see paragraphs 258, 287 ‑ 291 and 316 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.

74. 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 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 th Circuit Court of Appeals 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.

D. Military Commissions

1. Military Order of 13 November 2001

75. 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. 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; ...

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

76. 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 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 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

(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.

...

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

(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

77. On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld , 548 U.S. 557, 635 (2006), that the military commission “lacked the power to proceed” and that the scheme violated the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions. Consequently, the Military Commission order was replaced by the Military Commissions Act of 2006 (“the MCA 2006”), 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 MCA 2009”).

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”.

E. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate

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.

The Committee’s report, entitled “Study of the Central Intelligence Agency’s Detention and Interrogation” was finished towards the end of 2012. The report describes the CIA’s Detention and Interrogation Program between September 2001 and January 2009. It reviewed operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of the more than 100 individuals detained by CIA during that period.

79. On 13 December 2012, Senator Dianne Feinstein, chairman of the Intelligence Committee gave a statement, which, in so far as relevant, reads as follows:

“The committee’s report is more than 6,000 pages long. It is a comprehensive review of the CIA’s detention program that includes details of each detainee in CIA custody, the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy – or inaccuracy – of CIA descriptions about the program to the White House, Department of Justice, Congress and others. With this vote, the committee also approved the report’s list of 20 findings and conclusions.

The report is based on a documentary review of more than 6 million pages of CIA and other records, extensively citing those documents to support its findings. There are more than 35,000 footnotes in the report. I believe it to be one of the most significant oversight efforts in the history of the United States Senate, and by far the most important oversight activity ever conducted by this committee.

Following the committee’s vote today, I will provide the report to President Obama and key executive branch officials for their review and comment. The report will remain classified and is not being released in whole or in part at this time. The committee will make those decisions after receiving the executive branch comments.

The report uncovers startling details about the CIA detention and interrogation program and raises critical questions about intelligence operations and oversight. I look forward to working with the president and his national security team, including the Director of National Intelligence and Acting Director of the Central Intelligence Agency, to address these important issues, with the top priority being the safety and security of our nation. ...

I strongly believe that the creation of long-term, clandestine ‘black sites’ and the use of so-called ‘enhanced-interrogation techniques’ were terrible mistakes. The majority of the Committee agrees. ...”

80. On 3 April 2014 the Intelligence Committee decided to declassify the report’s executive summary and 20 findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which reads, 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.”

81. The report was later sent to the CIA for the declassification review. The declassification procedure is still pending.

III. THE PARTICULAR CIRCUMSTANCES OF THE CASE

82. The facts of the case may be summarised as follows.

A. The applicant’s capture, transfer to the CIA’s custody and initial detention (from the end of October to 4 December 2002)

83. At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates. By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report:

“7. [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.”

84. Subsequently, US agents took him to a secret CIA prison in Afghanistan known as the “Salt Pit”. During his detention, the 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.

85. After a brief stay at the “Salt Pit”, US agents took him to another secret CIA prison in Bangkok, Thailand, code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he remained until 4 December 2002. Mr Abu Zubaydah was detained in the same facility throughout the relevant time (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, judgment of 24 July 2014, §§ 86 and 89). At this site, the interrogations of both applicants were videotaped.

86. According to the 2004 CIA Report, at that black site the CIA subjected the applicant to the EITs (see also paragraphs 53–61 above) from 15 November 2002 until 4 December 2002.

In the chapter “Detention and Interrogation Operations at [NAME REDACTED]”, which is in most part redacted, paragraphs 74-76 read:

“ 74. [REDACTED] psycholgist/interrogators [REDACTED] led each interrogation of Abu Zubaydah and Al-Nashiri where EITs were used. The psychologist/interrogators conferred with [REDACTED] team members before each interrogation session. Psychological evaluations were performed by [REDACTED] psychologists.

75. [REDACTED IN WHOLE]

76. [REDACTED] 15 November 2002. The interrogation of Al-Nashiri proceeded after [REDACTED] the necessary Headquarters authorisation. [REDACTED].

Psychologist/interrogators began Al-Nashiri’s interrogation using EITs immediately upon his arrival. Al-Nashiri provided lead information on other terrorists during his first day of interrogation.

On the twelfth day of interrogation [REDACTED] psychologist/interrogators administered two applications of the waterboard to Al-Nashiri during two separate sessions. Enhanced interrogation of Al-Nashiri continued through 4 December 2002.”

87. Paragraph 224 of the 2004 CIA Report relates the same facts and also the fact that after those waterboard sessions Al Nashiri was moved from the “Cat’s Eye” black site to another site:

“224. With respect to Al-Nashiri [REDACTED] reported two waterboard sessions in November 2002, after which psychologist/interrogators determined that Al-Nashiri was compliant.

However, after being moved [REDACTED] Al-Nashiri was thought to be withholding information. Al-Nashiri subsequently received additional EITs, but not the waterboard.

The Agency then determined Al-Nashiri to be ‘compliant’. Because of the litany of techniques used by different interrogators over a relatively short period of time, it is difficult to identify exactly why Al-Nashiri became more willing to provide information. However, following the use of EITs, he provided information about his most current operational planning and [REDACTED] as opposed to the historical information he provided before the use of EITs.”

88. The same facts are related in the 2009 DOJ Report, which also states that Mr Al Nashiri and Mr Abu Zubaydah had been moved together to another CIA detention facility. The relevant passage reads as follows:

“On November 15, 2002, a second prisoner, Abd Al-rahim Al-Nashiri was brought to [REDACTED] facility. [REDACTED] psychologist/interrogators immediately began using EITs, and Al Nashiri reportedly provided lead information about other terrorists during the first day of interrogation. On the twelfth day, the psychologist/interrogators applied the waterboard on two occasions, without achieving any results. Other EITs continued to be used, and the subject eventually became compliant.

[REDACTED] 2002, both Al Nashiri and Abu Zubaydah were moved to another CIA black site, [REDACTED] ...”

89. According to a Vaughn Index released by the CIA to the ACLU, on 3 December 2002 a cable was sent to a CIA site from the CIA Headquarters entitled “Closing of facility and destruction of classified information”. The cable text itself, released in a redacted form, instructed the CIA station to create an inventory of videotapes of interrogation sessions with Mr Al Nashiri and Mr Abu Zubaydah. Another cable, sent on 9 December 2002, recorded that the inventory had been carried out:

“On 3 Dec[ember] [20]02, [redacted] conducted an inventory of all videotapes and other related materials created at [REDACTED] during the interrogations of al Qaeda detainees Abu Zubaydah and al Nashiri.”

90. In the total list of cables from “FIELD” [CIA station] to “HQTRS” (the CIA headquarters) relating to Mr Al Nashiri’s and Mr Abu Zubaydah’s interrogation at the Cat’s Eye site, no cables were sent after 4 December 2002. It transpires from the declassified CIA documents that that site was closed on that date.

B. Transfer to Poland and detention in the “black site” in Stare Kiejkuty (from 4/5 December 2002 to 6 June 2003)

1. Transfer (4-5 December 2002)

91. The applicant submitted that he had been transferred to Poland under the HVD Programme on 5 December 2002.

On 4 December 2002 a CIA contracted aircraft, a Gulfstream jet (capacity for 12 passengers) registered as N63MU with the US Federal Aviation Authority and operated by First Flight Management/Airborne Inc., flew the applicant and Mr Abu Zubaydah from Thailand to the Szymany military airbase in Poland.

The flight flew from Bangkok via Dubai and landed in Szymany, Poland, on 5 December 2002 at 14:56. It departed from there on the same day at 15:43. The flight was disguised under multiple layers of secrecy characterising flights that the CIA chartered to transport persons under the HVD Programme (see also paragraphs 258-260, 316 and 318 below).

92. The collation of data from multiple sources, including flight plan messages released by Euro Control, invoices, and responses to information disclosure requests made on behalf of the applicant and/or Mr Abu Zubaydah (see also paragraphs 287–291 below), confirmed that between 3 and 6 December 2002, the N63MU had travelled the following routes:

Take-off Destination Date of flights

Elmira, New York (KELM) Washington, DC (KIAD) 3 Dec 2002

Washington, DC (KIAD) Anchorage, Alaska (PANC) 3 Dec 2002

Anchorage, Alaska (PANC) Osaka, Japan (RJBB) 3 Dec 2002

Osaka, Japan (RJBB) Bangkok, Thailand (VTBD) 4 Dec 2002

Bangkok,Thailand (VTBD) Dubai,UAE (OMDB/OMDM) 4 Dec 2002

Dubai,UAE (OMDB/OMDM) Szymany, Poland (EPSY) 5 Dec 2002

Szymany, Poland (EPSY) Warsaw, Poland (EPWA) 5 Dec 2002

Warsaw, Poland (EPWA) London Luton, UK (EGGW) 6 Dec 2002

London Luton, UK (EGGW) Washington, DC (KIAD) 6 Dec 2002

Washington, DC(KIAD) Elmira,New York KELM 6 Dec 2002

93. A letter dated 23 July 2010 from the Polish Border Guard to the Helsinki Foundation for Human Rights confirms that the airplane N63MU landed at Szymany airport on 5 December 2002 with eight passengers and four crew and departed from there on the same day with no passengers and four crew (see also paragraph 292 below).

94. A 2007 Council of Europe report (“the 2007 Marty report” – see also paragraphs 258 and 316 below) drawn up by Senator Marty in the Marty Inquiry identifies N63MU as a “rendition plane” that arrived in Szymany from Dubai at 14:56 on 5 December 2002.

95. The routine procedure applied on arrival of the CIA aircraft in Szymany airport was described by one of the witnesses heard in the course of the Fava Inquiry, a certain Ms M.P. who was at that time the Szymany airport manager (see paragraphs 293–302 below). It was also described in the Fava Report (see paragraph 271 below) and the 2007 Marty Report (see paragraph 260 below).

96. In accordance with that routine procedure, the applicant and Mr Abu Zubaydah were apparently taken to a van provided by the Polish authorities and driven to the Polish intelligence’s training base in Stare Kiejkuty, which is located close to the Szczytno airport (see also paragraphs 260, 266-271, 294 ‑ 302 below).

97. No official records of the Polish Border Guard disclosed Mr Al Nashiri’s and Mr Abu Zubaydah’s presence on Polish territory (see also paragraph 328 below).

2. Detention and ill-treatment (5 December 2002- 6 June 2003)

98. During his detention the applicant was deprived of any contact with his family and the outside world and subjected to various forms of ill ‑ treatment.

99. The 2004 CIA Report, in the section covering the period from December 2002 to September 2003, in paragraphs 90-98, refers to the following events that took place in December 2002 and January 2003:

“Specific Unauthorized or Undocumented Techniques

...

Handgun and Power Drill

91. [REDACTED] interrogation team members, whose purpose was to interrogate-Al-Nashiri and debrief Abu Zubaydah initially staffed [REDACTED]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [REDACTED] they assessed him to be ‘compliant’. Subsequently, CTE officers at Headquarters [REDACTED] sent a [REDACTED] senior operations officer (the debriefer) [REDACTED] to debrief and assess Al-Nashiri.

92. [REDACTED] The debriefer assessed AI-Nashiri as withholding information, at which point [REDACTED] reinstated [REDACTED] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [REDACTED] the debriefer entered the cell where Al-Nashiri sat shackled and racked [racking is a mechanical procedure used with firearms to chamber a bullet or simulate a bullet being chambered] the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day debriefer used a power drill to frighten Al-Nashiri. [REDACTED] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill.

93. The [REDACTED] and debriefer did not request authorization or report the use of these unauthorized techniques to Headquarters. However, in January 2003, newly arrived TDY officers [REDACTED] who had learned of these incidents reported them to Headquarters. OIG investigated and referred its findings to the Criminal Division of DoJ. On 11 September 2003, DoJ declined to prosecute and turned these matters over to CIA for disposition. These incidents are the subject of a separate OIG Report of Investigation.

Threats

94. [REDACTED] During another incident [REDACTED] the same Headquarters debriefer, according to a [REDACTED] who was present, threatened Al-Nashiri by saying that if he did not talk, ‘We could get your mother here’ and, ‘We can bring your family in here’. The [REDACTED] debriefer reportedly wanted Al-Nashiri to infer, for psychological reasons, that the debriefer might be [REDACTED] intelligence officer based on his Arabic dialect and that Al-Nashiri was in [REDACTED] custody because it was widely believed in Middle East circles that [REDACTED] interrogation technique involves sexually abusing female relatives in front of the detainee. The debriefer denied threatening AI-Nashiri through his family. The debriefer also said he did not explain who he was or where he was from when talking with Al-Nashiri. The debriefer said he never said he was [REDACTED] intelligence officer but let AI-Nashiri draw his own conclusions.

...

Smoke

96. [REDACTED] An Agency [REDACTED] interrogator admitted that, in December 2002, he and another [REDACTED] smoked cigars and blew smoke in Al ‑ Nashiri’s face during an interrogation. The interrogator claimed they did this to ‘cover the stench’ in the room and to help keep the interrogators alert late at night. This interrogator said he would not do this again based on ‘perceived criticism’. Another Agency interrogator admitted that he also smoked cigars during two sessions with Al-Nashiri to mask the stench in the room. He claimed he did not deliberately force smoke into Al-Nashiri’s face.

Stress Positions

97. [REDACTED] OIG received reports that interrogation team members employed potentially injurious stress positions on Al-Nashiri. Al-Nashiri was required to kneel on the floor and lean back. On at least one occasion, an Agency officer reportedly pushed AI-Nashiri backward while he was in this stress position. On another occasion [REDACTED] said he had to intercede after [REDACTED] expressed concern that Al-Nashiri’s arms might be dislocated from his shoulders. [REDACTED] explained that, at the time, the interrogators were attempting to put Al-Nashiri in a standing stress position. Al-Nashiri was reportedly lifted off the floor by his arms while his arms were bound behind his back with a belt.

Stiff Brush and Shackles

98. [REDACTED] interrogator reported that he witnessed other techniques used on Al-Nashiri that the interrogator knew were not specifically approved by DoJ. These included the use of a stiff brush that was intended to induce pain on Al-Nashiri and standing on Al-Nashiri’s shackles, which resulted in cuts and bruises. When questioned, an interrogator who was at [REDACTED] acknowledged that they used a stiff brush to bathe Al-Nashiri. He described the brush as the kind of brush one uses in a bath to remove stubborn dirt. A CTC manager who had heard of the incident attributed the abrasions on Al-Nashiri’s ankles to an Agency officer accidentally stepping on Al-Nashiri’s shackles while repositioning him into a stress position.”

100. Those events are also related in the 2009 DOJ Report which states that after “both Al Nashiri and Abu Zubaydah were moved to another CIA black site”, Al Nashiri was subjected to the following treatment:

“While EITs were being administered, several unauthorised techniques were also used on Al-Nashiri. Sometime around the end of December [REDACTED] debriefer tried to frighten Al-Nashiri by cocking an unloaded pistol next to the prisoner’s head while he was shackled in a sitting position in his cell. On what may have been the same day, Al-Nashiri was forced to stand naked and hooded in his cell while the debriefer operated a power drill, creating the impression that he was about to use it to harm Al- Nashiri.

On another occasion in December 2002 [REDACTED] debriefer [REDACTED] told Al-Nashiri that, if he did not talk, his mother and family would be brought to the facility. According to the CIA OIG report, there is a widespread perception in the Middle East that [REDACTED] intelligence services torture prisoners by sexually abusing female family members in their presence.

On other occasions, the CIA debriefer blew cigar smoke in Al-Nashiri’s face, manhandled him while he was tied in stress positions, and stood on his shackles to induce pain.”

101. The applicant gave a description of ill treatment to which he was subjected in CIA custody to representatives of the International Committee of the Red Cross (“the ICRC”). From 6 and 11 October and from 4 to 14 December 2006 the ICRC interviewed 14 High-Value Detainees, including the applicant, in Guantánamo. On this basis, the ICRC drafted its Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 (“the 2007 ICRC Report”; for a further rendition of the relevant passages from that report see paragraphs 281–282 below).

The applicant’s account of ill-treatment in his “third place of detention” – which, in his submission, was Poland – as recorded by the ICRC reads, in so far as relevant, as follows:

“1.3.2. PROLONGED STRESS STANDING

Ten of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.

For example, ... Al Nashiri [alleged that he was shackled in this position] for at least two days in Afghanistan and again for several days in his third place of detention.

...1.3.10. THREATS

Nine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of ‘water boarding’, electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and ofan interrogation process to which ‘no rules applied’.

... Mr Al Nashiri alleged that, in his third place of detention, he was threatened with sodomy, and with the arrest and rape of his family.

102. The fourteen High-Value Detainees, including Mr Al Nashiri, gave the ICRC the following common description of their detention at the CIA black sites:

« 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. ...

In addition, the detainees were denied access to an independent third party. ...

1.3. OTHER METHODS OF ILL-TREATMENT

... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.”

C. Transfer from Poland on 6 June 2003

103. On 6 June 2003, according to the applicant, he was secretly transferred from the Szymany airbase in Poland to Rabat, Morocco, on a rendition plane with a tail number N379P.

The aircraft, a Gulfstream V, also known as the “Guantánamo Express” was described in the working document no. 8 attached to the Fava Report (PE 380.984v02-00) as “one of the most notorious prisoner transport aircraft used by the CIA”. It can transport up to 18 passengers, but it is usually configured for 8 passengers.

104. The fact of N379P’s landing at and departure from the Szymany airport is mentioned in the letter of 23 July 2010 from the Polish Border Guard to the Helsinki Foundation for Human Rights (see also paragraph 292 below):

“N379P, June 6, 2003

Arrival/passengers: 1, crew: 2; Departure/passengers: 0, crew: 2”

105. The 2007 Marty Report identified the N379P as a “rendition plane” that flew from Kabul and landed in Szymany airport the previous day, i.e., on 5 June 2003 (see paragraph 258 below).

106. The flight data contained in the 2007 Marty Report was subsequently analysed by the Center for Human Rights and Global Justice (“the CHRGJ”), which, in its report released on 9 March 2010 (“the CHRGJ Report”), confirmed that N379P’s movements over 3-7 June 2003 “conform[ed] to the most typical attributes of a CIA rendition circuit”. The data collected and examined in the CHRGJ Report shows that a Gulfstream V aircraft, registered with the US Federal Aviation Administration as N379P, embarked 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 Αirport on 7 June 2003 (for further details see also paragraph 291 below).

D. The applicant’s further transfers during CIA custody (from 6 June 2003 to 6 September 2006)

107. According to the applicant, after his transfer out of Poland, he was detained in Rabat, Morocco, until 22 September 2003, when he was flown to the US Naval Base in Guantánamo Bay.

108. On 27 March 2004 the CIA flew the applicant from Guantánamo Bay back to Rabat.

109. On an unknown date he was moved to the CIA secret detention facility in Bucharest, Romania (allegedly named “Bright Light”) and remained there until he had been finally transferred to Guantánamo Bay – presumably at the latest by 6 September 2006. More detailed information on his alleged detention in Romania is provided in his application lodged against Romania, no. 33234/12 (see the “Statement of facts” available on the Court’s website www.echr.coe.int.).

E. The applicant’s detention in Guantánamo Bay and his trial before the Military Commission (from 6 September 2006 to present)

110. On 6 September 2006 President Bush publicly acknowledged that 14 “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 71 above).

111. Presumably since 6 September 2006 at the latest, the applicant has been detained in the US Naval Base in Guantánamo Bay. By that time, he had been held in undisclosed detention for nearly 4 years.

1. Hearing before the Combatant Status Review Tribunal

112. 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.

113. 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 and that “[f]rom the time I [had been] arrested five years ago, they [had] been torturing me. It [had] happened during interviews. One time they [had] tortured me one way and another time they [had] tortured me in a different way”. The applicant’s reply to the President of the Tribunal’s request to describe the methods that were used, is largely redacted from the transcript of the hearing. The unredacted portion however states that: “before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body”. He also stated that “they used to drown me in water. So I used to say yes, yes.” Further details relating to his own description of his treatment are redacted from the transcript.

2. Trial before the military commission

114. 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.

115. 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.

116. On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission.

117. 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 grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel.

118. 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.

119. 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.

120. 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.

121. 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.

122. 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 in 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.

123. 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 decision whether to reject the charges or to refer some, all or none of them for trial before the military commission.

124. 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.

125. 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.

126. 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 U.S. government. It states that Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome.

127. The proceedings against the applicant before the military commission are pending. The date for the applicant’s trial before the military commission is now fixed for 2 September 2014.

F. Parliamentary inquiry in Poland

1. Parliamentary inquiry in Poland

128. In November-December 2005 a brief parliamentary inquiry into allegations that a secret CIA detention site existed in the country was carried out in Poland. The inquiry was conducted by the Parliamentary Committee for Special Services ( Komisja do Spraw Służb Specjanych ) behind closed doors and none of its findings have been made public. The only public statement that the Polish Government made was at a press conference when they announced that the inquiry had not turned up anything “untoward”.

2. Views regarding the inquiry expressed by international organisations

(a) Council of Europe

129. The 2006 Marty Report (see also paragraph 244 below), referring to that inquiry stated: “this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations”.

The 2011 Marty Report, in paragraph 40, also referred to the Polish parliamentary inquiry, stating, among other things that “the [parliamentary] commission responsible for oversight of the intelligence services ... held a one-day meeting on 21 December 2005 to discuss the allegations of secret CIA prisons in Poland” and that “the only public indication given by the commission was that there ha[d] not been any CIA prisons in Poland”.

(b) European Parliament

130. Similar concerns were expressed in the Fava Report, which stated that “the Polish government investigated the allegations in internal, secret inquiry (see also paragraph 264 below) and the EU Parliament’s in paragraph 169 of its resolution adopted following the report “regretted that no special inquiry ha[d] been established and that the Polish Parliament ha[d] conducted no independent investigation” (see paragraph 270 below).

G. Criminal investigation in Poland

131. Given that the Polish Government disclosed only limited information of the investigation (see also paragraphs 17–40 above), the following description constitutes the Court’s reconstruction of its conduct based on various pieces of information supplied by the Government, the applicant in the present case and the applicant in the case of Husayn (Abu Zubaydah) and also on some materials available in the public domain – which have not been contested, negated or corrected by either party. Certain parts of the parties’ accounts overlap but neither party contested the account given by its opponent.

Accordingly, there has been no disagreement as to the circumstances of the case as stated below.

1. Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Husayn (Abu Zubaydah) v. Poland

132. On 11 March 2008 the Warsaw Regional Prosecutor ( Prokurator Okręgowy ) opened an investigation against persons unknown ( śledztwo w sprawie ) concerning secret CIA prisons in Poland.

133. On 11 July 2008 the investigation was taken over by the State Prosecutor ( Prokurator Krajowy ) and referred to the 10 th Department of the Bureau for Organised Crime and Corruption.

134. On 1 April 2009, as the Government stated, “due to organisational changes”, the case was transmitted to the Warsaw Prosecutor of Appeal ( Prokurator Apelacyjny ) and was then conducted by the 5 th Department for Organised Crime and Corruption of the Warsaw Prosecutor of Appeal’s Office until 26 January 2012.

On 26 January 2012, by virtue of the Prosecutor General’s decision, the case was transferred to the Kraków Prosecutor of Appeal (see also paragraph 159 below).

135. Referring to the scope of the investigation, the Government stated that “the subject matter ... covers, among others, alleged commission of offences under Article 231 § 1 of the Criminal Code and other, relating to alleged abuse of powers by public officials, acting to the detriment of the public interest, in connection with the alleged use of secret detention centres located in the territory of Poland by the Central Intelligence Agency to transport and illegally detain persons suspected of terrorism”.

Subsequently, in their observations in Abu Zubaydah , they stated the following:

“The scope of the conducted investigation as to persons in light of the alleged offences reported during different periods covers three persons: Abd Al-Rahim Husein Muhamed Abdu Al-Nashiri, Zayn Al-Abidin Muhammad Husein and a certain W.M.S.M.A.”

136. In the course of the investigation evidence from 62 persons has been heard. The case file comprises 43 volumes. Procedural steps taken in the investigation included “checking information contained in Dick Marty’s reports drafted for the Council of Europe in 2006-2007 and in the report of the European Parliament concerning possible detention in the territory of Poland of persons suspected of terrorism, as well as the use against them of illegal methods of interrogation”.

The Government added that the actions taken by the prosecution “concerned procedural verification of the circumstances of the landings, while omitting border and customs control in the Szymany airport used by the [CIA]”.

Border Guard and Customs Service officers, the staff of the Szymany airport, air traffic controllers, one member of the European Parliament’s Commission that had carried out an inquiry into the circumstances surrounding the CIA operations in Poland at the relevant time were heard as witnesses. The PANSA provided materials concerning aircraft landings in the Szymany airport.

137. According to the Government, “due to the complex legal nature of the proceedings, opinion of experts on public international law has been sought in order to provide answers to questions concerning international law regulating the establishment and running of detention centres for persons suspected of terrorism and the status of such persons”.

138. The Polish authorities addressed four requests for legal assistance to the US authorities under the Mutual Legal Assistance in Criminal Matters Agreement (“the MLAT”) signed by the United States and Poland.

The first request for information concerning the landing of US aircraft in the Szymany airport, dated 18 March 2009, was declined by the US Department of Justice on 7 October 2009 (see also paragraph 149 below).

The second request, dated 9 March 2011, concerned, according to the Government’s description, “the need to perform acts with the participation of two persons who have the status of injured persons and whose representatives declared their participation in the preparatory proceedings”. As of 5 September 2012 (the date on which the Government filed their observations in Al Nashiri ) there had been no answer to the request (see also paragraph 153 below).

The most recent two requests were sent in May 2013 and, as the Government submitted, concerned handing over documents, providing information and questioning witnesses.

The former requests, despite reminders of 25 July and 11 October 2012 and 30 January 2013, have not been answered. Another reminder was sent by the Office of the Prosecutor General on 28 May 2013.

139. The Polish authorities also requested the ICRC for information but their request was denied, as the Government state, “on the grounds of the ICRC’s procedure”. The US lawyers for Mr Al Nashiri and for the second injured party were heard but gave fragmentary depositions, invoking the principle of client-lawyer confidentiality.

As regards further actions taken in the course of the investigation, the Government submitted, among other things, the following:

“Lawyers for the potential injured persons submitted multiple motions as to evidence in the case. These are being systematically examined in the course of the investigation, some were dismissed because the circumstances raised in them were considered proven in line with the statements made by the applicants. Actions covered by other motions are successively implemented. ... Several of these motions can be only implemented through international legal assistance, which involves drafting additional motions in that regard. ...

At the current stage of the proceedings, persons conducting the investigation have limited possibilities of finding new witnesses (although there are some exceptions). They are now involved in additional hearings of persons who have already been questioned as witnesses. These additional hearings are intended either to provide further details or to extend the scope of the hearing. On witness in this cases is Senator Józef Pinior. ... the questioning was intended to obtain evidence which he publicly declared to have about the events under investigation. But the hearing proved ineffective. When asked about this directly, the senator invoked his right under [section] 21 of the Act on the exercise of the mandate of deputy and senator dated 9 May 1996 ( ustawa z dnia 9 maja 1996 r. o wykonywaniu mandatu posła i senatora ). and refused to disclose the name of the person who provided him with such information.”

140. The Government added that actions had been taken to determine whether expert opinions could be obtained in at least three areas of expert knowledge. The nature and the area could not be disclosed at this stage. Also, translations of documents and reports in English were provided.

2. Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Abu Zubaydah v. Poland and certain materials available in the public domain

141. The investigation concerning secret CIA prisons in Poland started on 11 March 2008.

142. On 9 April 2009, in response to a request for information by the Helsinki Foundation for Human Rights, the Head of the Bureau for Organised Crime and Corruption in the State Prosecutor’s Office ( Biuro ds. Przestępczości Zorganizowanej i Korupcji Prokuratuy Krajowej ) stated that:

“...in reference to the Resolution of the European Parliament regarding the investigation into the alleged use of European countries by the Central Intelligence Agency of the United States to transport and illegally detained prisoners, the 5 th Department for Organized Crime and Corruption of the Warsaw Prosecutor of Appeal is conducting the investigation in the case AP V DS. 37/09 regarding the abuse of power by State officials, namely the offence defined in Article 231 § 1 of the Criminal Code.

The proceedings were commenced on March 11, 2008 by the Warsaw [Regional Prosecutor].

In the course of the investigation there are conducted open and classified procedural activities.

Within open activities, landings of American aircrafts in Szymany airport were confirmed. The information quoted in your letter, sourced by the web site, does not correspond with the exact wording of the prosecutor. The prosecutor possesses information over the report of the International Red Cross.

The interest of the Helsinki Foundation for Human Rights of the case is obvious. Nevertheless the presentation of prosecutor’s intentions, due to the fact that a wide range of procedural activities is classified, is not possible,

Taking into consideration the above, it is not possible to indicate the precise date of the termination of the investigation.”

143. On an unspecified date in 2009, responding to a questionnaire from the UN experts working on the 2010 UN Joint Study (see also paragraphs 283-285 below), the Polish authorities stated the following:

“On 11 March 2008, the [Regional] Prosecutor’s Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor’s Office, the investigation was referred to the Warsaw [Prosecutor of Appeal]. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body.”

144. On 21 September 2010 the Polish lawyer for Mr Al Nashiri filed an application with the Warsaw Regional Prosecutor, asking for an investigation into his detention and treatment in Poland to be opened.

145. The application included numerous evidentiary motions, requesting that the investigating prosecutors hear evidence from the applicant and a number of other witnesses, including former General Directors of the CIA G. Tenet, J. Mc Laughlin, P. Goss and M. Hayden, certain pilots and commanders involved in the rendition flights to Poland, members of the ICRC team, Senator Dick Marty and other authors of the Marty Reports and a number of Polish politicians and military officials, for instance, General H. Tacik, Executive Commander of the Armed Forces in 2004-2007, former Prime Minister L. Miller, former president of Poland A. Kwaśniewski and former Head of the Intelligence Agency Z. Siemiątkowski. The applicant’s lawyer also requested the prosecution to admit documentary evidence and ask the relevant authorities to disclose the identities and locations of persons who needed to be heard in the investigation.

146. The lawyer also asked that the applicant be informed about all actions undertaken as part of the investigation and be admitted to participate in them.

147. On 22 September 2010, Mr J. Mierzewski, the investigating prosecutor from the 5 th Department of Organised Crime and Corruption of the Warsaw Prosecutor of Appeal’s Office, informed the applicant’s lawyer that there was no need to conduct a separate investigation into the circumstances surrounding the applicant’s detention and treatment as those matters would be dealt with in the investigation initiated on 11 March 2008.

148. In October 2010, the prosecutor granted injured party ( pokrzywdzony ) status to the applicant.

149. In a letter of 15 December 2010, replying to the Helsinki Foundation for Human Rights’ request for information, the prosecution authorities revealed that on 18 March 2009 the Warsaw Prosecutor of Appeal had submitted a legal assistance request to the US judicial authorities regarding the investigation. On 7 October 2009 the US Department of Justice informed the Polish authorities that under Article 3(1)(c) of the MLAT, the request had been refused and American authorities considered the case closed (see also paragraph 138 above). The Prosecutor did not publicly disclose the content of the mutual assistance request due to “State secrecy”.

150. In a letter of 4 February 2011 addressed to the Helsinki Foundation for Human Rights the prosecutor provided information about certain procedural actions undertaken in the course of the investigation. According to the letter, steps undertaken by the prosecutors were related to the verification of the landings without clearance by the CIA planes between 2002 and 2003 at the Szymany airport. Evidence from Border Guard and Customs Service officers had been heard, as well as from employees of the Szymany airport, flight controllers and a member of the European Parliament’s Commission that carried out an inquiry into the circumstances under investigation (see also paragraph 136 above).

151. Apparently on 17 February 2011 the Warsaw Deputy Prosecutor of Appeal, Mr R. Majewski, and the investigating prosecutor, Mr J. Mierzewski, ordered that evidence from three experts on public international law on the issues relevant for the investigation be obtained (see also paragraph 137 above). The contents of the order, questions and answers from the experts were not made public but were leaked to the press and published by Gazeta Wyborcza daily on 30 May 2011. There was no subsequent disclaimer from the prosecution.

The text of the prosecutors’ order as reproduced by Gazeta Wyborcza read, in so far as relevant, as follows:

“... Order on obtaining a report – appointing an expert in the case concerning abuse of power by State officials, i.e. the offence defined in Article 231 and others [of the Criminal Code].

Robert Majewski, Warsaw Deputy Prosecutor of Appeal, and Jerzy Mierzewski, the prosecutor of the Warsaw Prosecutor of Appeal’s Office, decided to appoint a team of experts on the public international law, i.e. ... in order to establish whether [text of ten questions reproduced below].”

The questions and corresponding answers, as published in Gazeta Wyborcza , read as follows:

“1. Are there any provisions of public international lawregulating the setting up and functioning of facilities for holding persons suspected of terrorist activity? If so, which of them are binding on Poland?

Answer : Terrorism is a criminal offence and is prosecuted on the basis of legal provisions of a given State.

2. Are there any provisions of public international law permitting a facility for holding persons suspected of terrorist activity to be excluded from jurisdiction of the State on whose territory such a facility has been set up? If so, which of them are binding on Poland?

Answer: There are no such provisions. The setting up of such a facility would amount to a breach of the Constitution and an offence against sovereignty of the R[epublic of] P[oland].

3. In the light of international public law, what is the legal status of an arrested person suspected of terrorist activity?

Answer: This is regulated by criminal law of a given country unless [a person] is a prisoner of war.

4. What influence on the legal status of an arrested person suspected of terrorist activity does have the fact that the arresting authority considers that the person belongs to the organisation described as Al-Khaida?

Answer : It does not have any importance. Membership in Al-Khaida is not separately regulated by any provisions of criminal law.

5. In the light of the provisions of international public law, what importance for the legal status of an arrested person suspected of terrorist activity does have the fact that the person has been arrested outside the territory which is occupied, seized or on which an armed conflict takes place?

Answer: Such arrest can be qualified as unlawful abduction.

6. Can a person suspected of terrorist activity, arrested outside the territory of the Republic of Poland and subsequently held in a facility in Poland, be characterised as a person referred to in Article 123 § 1-4 of the Criminal Code [in general, persons protected by the 1949 Geneva Conventions: members of armed forces who have laid down their arms, wounded, sick, shipwrecked, medical personnel, priests, prisoners of war or civilians from the territory occupied, seized or on which an armed conflict takes place or other persons protected by international law during an armed conflict]?

Answer: Such a qualification is justified.

7. Is the holding of a person suspected of terrorist activity, in respect of whom no charges were laid and no detention order has been issued under Polish law, in breach of public international law in terms of deprivation of liberty or the right to an independent and impartial court or limitations on his defence rights in criminal proceedings?

Answer: Yes and it should be prosecuted.

8. In the light of international public law, can the methods of interrogation and treatment of detainees suspected of terrorist activity as described in the CIA documents supplied by the injured parties be considered torture, cruel or inhuman treatment of these persons?

Answer: Yes. Torture is prohibited both under international conventions and the laws of specific States.

9. Are the regulations issued by the USA authorities in respect of persons considered to be engaged in terrorist activity and their application in practice in conformity with the provisions of international humanitarian law ratified by Poland?

Answer: No. These regulations are often incompatible with international law and human rights.

10. If possible, [the experts are asked] to make an assessment of compatibility of regulations concerning combating terrorism issued by the USA authorities after 11 September 2011 with the provisions of public international law relating to the legal status, treatment, methods of interrogation and procedural guarantees of persons. “

152. On 25 February 2011 the applicant’s lawyer filed, through the Warsaw Prosecutor of Appeal, a complaint with the Warsaw Regional Court ( Sąd Okręgowy ) under the Law of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”). The applicant asked the court to find that the length of the investigation had been excessive, order the investigating prosecutor to take actions to counteract the delay and to mitigate the consequences of the delay that had already occurred. He also asked the court to award him an appropriate sum in compensation.

The complaint was referred for examination to the Białystok Regional Court.

On 20 April 2011 the court dismissed it, holding that the length of the investigation was not excessive. It stressed, in particular, complexity of the case.

153. According to press reports, on 9 March 2011 the prosecution submitted the second legal assistance request to the US Department of Justice, sought under the MLAT. Although the prosecutors have never officially disclosed its content, it is reported that they asked, inter alia , for evidence to be heard from the applicant. There has apparently been no answer by the US authorities to this request (see also paragraph 138 above).

154. On an unspecified date in mid-May 2011 the investigating prosecutor J. Mierzewski was disqualified from dealing with the case.

155. Later, the press reported that the disqualified investigating prosecutor had intended to ask the present President of Poland to release the former President of Poland, Mr A. Kwaśniewski, from his secrecy obligations in order to have him questioned in connection with the alleged operation of the CIA “black site” in Poland.

156. The applicant and Mr Abu Zubaydah submitted that in September 2011, the President of Poland, Mr B. Komorowski, had refused to relieve the former President of Poland A. Kwaśniewski from his secrecy duty for the purposes of providing information to the prosecutors.

157. On an unspecified date, presumably in the second half of 2011, the First President of the Supreme Court gave a decision exempting a number of State officials from maintaining the secrecy of classified materials in connection with the investigation into secret CIA prisons in Poland and ordering the Intelligence Agency ( Agencja Wywiadu ) to disclose classified materials to the prosecution. This decision was apparently given in a review procedure (see also paragraph 204 below), after the Head of the Intelligence Agency refused the investigating prosecutor’s request to that effect.

158. According to press reports, on an unspecified date, presumably on 10 January 2012, the Warsaw Prosecutor of Appeal charged Mr Z. Siemiątkowski, the Head of the Intelligence Agency in 2002-2004, during the Democratic Left Alliance ( Sojusz Lewicy Demokratycznej ) Government, with abuse of power (Article 231 of the Criminal Code – see also paragraph 178 below) and with violation of international law by “unlawful detention” and “imposition of corporal punishment” on prisoners of war. Information about the charges leaked to the press towards the end of March 2012 and was widely disseminated in Polish and international media. It was suggested that the charges were eventually brought mostly because of the fact that the Intelligence Agency had been obliged – pursuant to the First President of the Supreme Court’s decision – to supply certain classified materials relating to their cooperation with the CIA in the first stage of the “war on terror” (see also paragraph 205 below).

There has been no official statement from the prosecution regarding the charges. The supposed suspect, however, gave interviews to the press and stated that he had refused to give evidence before the prosecutor and was going to rely on his right to silence throughout the entire proceedings, also at the judicial stage. He invoked national-security grounds.

159. After the investigation was transferred to the Kraków Prosecutor of Appeal on 26 January 2012, the Prosecutor General (see also paragraph 133 above), relying on the secrecy of the investigation, refused to give reasons for the decision to transfer the case.

160. As regards other persons possibly involved, since the end of March 2012 there have been repeated reports in the media that evidence disclosed to the prosecution by the Intelligence Agency may justify the initiation of the proceedings against Mr L. Miller, the Prime Minister in 2001-2004, before the Court of State ( Trybunał Stanu) for violating the Constitution. The President of Poland at the material time, Mr A. Kwaśniewski, has also been mentioned in that context. Both of them have given interviews to media and denied the existence of any CIA prisons in Poland.

161. In its 2012 Periodic Report on the Implementation of the Provisions of the Convention against Torture, Poland has referred to the scope of the investigation in the following way:

“An investigation on the circumstances defined in the question was conducted by the Appellate Prosecution Authority in Warsaw (ref. No. Ap V Ds. 37/09) and concerns suspicions of public officials exceeding their authorities to the detriment of public interest, i.e. an offence under Art. 231 § 1 [of the Criminal Code]```````````. ... Because of the fact that the proceedings are confidential, any more extensive account of the results of the investigation, its scope, detailed progress and methodology is impossible. At the current stage of development, the conclusion of investigation cannot be predicted, even roughly.”

162. On 29 February 2012 the Helsinki Foundation for Human Rights asked the Kraków Prosecutor of Appeal for information about the conduct of the investigation.

The prosecutor replied on 4 April 2012. The letter read, in so far as relevant, as follows:

“1. The investigating prosecutor in the case concerning the suspicion that there were CIA prisons in Poland is Ms K.P.

2. The case is registered under no. Ap V Ds. 12/12/S.

3. The case concerns an offence defined in Article 231 §1 of the Criminal Code and in other provisions.

4. The investigation has been prolonged until 11 August 2012.

5. In the course of the investigation evidence has been taken from 62 persons.

6. After 18 March 2009 the authorities of the United States have been asked to supply appropriate information within the framework of [mutual] legal assistance.

7. To date, the case file comprises twenty volumes.

8. Access to classified material is strictly controlled and all persons having access to the materials are listed in the documentation. As a matter of principle, the investigating prosecutors and prosecutors supervising the conduct of the investigation have access to the file.

9. In the course of the investigation, expert evidence has been obtained from experts in public international law.

I should also inform you that I am not able to give you a broader answer because the material collected in the case is classified “top secret”.

Information of the contents of the order appointing the experts in public international law, cited in your letter, is not an official position of the prosecution and, in consequence, we cannot give you more detailed information in reply to your questions. I would add that the prosecution has initiated appropriate proceedings concerning the illegal disclosure of information about the pending investigation. I would also add that information contained in this letter has not been supplied under [the law on public access to information]. According to the established case-law [of the Supreme Administrative Court], this law does not apply to pending investigations. However, respecting the citizens’ right to information about activities of public authorities, I provide you with the above information ...”

163. On 28 July 2012 the spokesman for the prosecution informed the press that the investigation into the matter of the CIA secret prisons in Poland had been extended by a further six months, that is until 11 February 2013. This was the eighth extension since the beginning of the investigation on 11 March 2008.

164. On 21 September 2012 the Helsinki Foundation for Human Rights requested the National Council of Prosecution ( Krajowa Rada Prokuratury ) to examine a possible breach of the principle of independence of prosecutors in relation to the transfer of the investigation to the Kraków Prosecutor of Appeal on 26 January 2012 (see paragraphs 133 and 159 above).

165. On 10 January 2013 the National Council of Prosecution found that there were no grounds to conclude that the transfer occurred in violation of the principle of independence of prosecutors. The relevant decision stated, among other things, that:

“The National Council of Prosecution did not find grounds supporting the argument that the transfer of the investigation occurred in violation of the [principle of the] independence of prosecutors as guaranteed by law. The decisions to change the prosecutors in charge of the criminal proceedings and the decision to hand over the case to the Prosecutor of Appeal for further investigation are well-grounded in the applicable provisions of law – a point which must be unequivocally emphasised. ...

At this point, it should be noted that the National Council of Prosecution has not received any signals from prosecutors conducting this investigation suggesting that their independence has been violated.”

166. On 1 February 2013 it was reported in the Polish media that the prosecutor had applied for a further extension. The investigation was then extended by the Prosecutor General until 11 June 2013.

167. On 7 February 2013 Gazeta Wyborcza published extracts from an interview given by L. Miller, the Prime Minister of Poland in 2001-2004, to the radio station TOK FM , who said:

“I refused to give evidence in the case concerning the so-called ‘CIA prisons’ because I do not have confidence in the prosecution’s impenetrability. Cancer has been eating the prosecution away for years. There are leaks all the time. I was convinced that whatever I would say there, would in a moment be in newspapers. In addition, the scope of questions which were the object of the interrogation went considerably beyond the problem of the so-called ‘CIA prisons’. And I am a man responsible enough and will not talk to anyone about various intelligence operations.”

168. On 10 June 2013 the spokesman for the Kraków Prosecutor of Appeal informed the media that the investigation had been extended by the Prosecutor General until mid-October 2013.

169. The authorities did not disclose the terms of reference or the precise scope of the investigation. Until June 2013 the investigation has been extended nine times.

170. The investigating prosecutor ruled on evidentiary motions filed by Polish counsel who represents the applicant in the pending criminal investigation, but refused most of the counsel’s requests to interview witnesses.

The Polish counsel has also received access to the non-classified part of the investigation file and on one occasion to classified material relating to the investigation. However, the precise scope of the investigation remains unclear. No formal charges have been officially announced to date, and there is no indication as to when the investigation is likely to be completed.

171. In October or November 2013, the Prosecutor General extended the investigation until 11 February 2014. This was the eleventh extension granted to the investigating prosecutor during the proceedings.

172. As on the date of the adoption of the judgment, the proceedings were still pending.

3. Views regarding the investigation expressed by international organisations

(a) United Nations

(i) The 2010 UN Joint Study

173. The 2010 UN Joint Study, in its paragraph 118, recorded its “concern . . . about the lack of transparency into the investigation” observing that “[a]fter 18 months, still nothing is known about the exact scope of the investigation”. The UN experts added that they “expect that any such investigation would not be limited to the question of whether Polish officials had created an ‘extraterritorial zone’ in Poland, but also whether officials were aware that ‘enhanced interrogation techniques’ were applied there (see also paragraphs 283-285 below).

(ii) The UN Human Rights Committee

174. The conduct of the investigation was also examined by the UN Human Rights Committee. In its concluding observations on reports on Poland dated 27 October 2010, the UN Human Rights Committee “note[d] with concern that the investigation conducted by the Fifth Department for Organised Crime and Corruption of Warsaw Prosecutor of Appeal [wa]s not yet concluded” (see also paragraph 286 below).

(iii) The UN Committee against Torture

175. The UN Committee against Torture considered the combined fifth and sixth periodic reports of Poland (CAT/C/POL/5-6) at its 1174th and 1177th meetings, held on 30 and 31 October 2013. It adopted its concluding observations on the reports at its 1202nd meeting (CAT/C/SR. 1202) held on 19 November 2013.

The relevant part of the document, entitled “Rendition and secret detention programme, reads as follows:

“10. The Committee is concerned about the lengthy delays in the investigation process on the alleged complicity of the State party in the Central Intelligence Agency rendition and secret detention programmes between 2001 and 2008, which allegedly involved torture and ill treatment of persons suspected of involvement in terrorism related crimes. It is also concerned about the secrecy surrounding the investigation and failure to ensure accountability in these cases (arts.2, 3, 12 and 13).

The Committee urges the State party to complete the investigation into allegations of its involvement in the Central Intelligence Agency rendition and secret detention programmes between 2001 and 2008 within reasonable time and ensure accountability of the persons involved in the alleged crimes of torture and ill treatment. It also recommends that the State party inform the public and ensure transparency into the progress of its investigation process as well as cooperate in full with the European Court of Human Rights on the Central Intelligence Agency rendition and secret detention cases against Poland.”

(b) Amnesty International

176. In June 2013 Amnesty International published its report entitled “Unlock the Truth: Poland’s involvement in CIA secret detention” which, in its conclusions, states, inter alia , the following:

“Poland has been in the spotlight since 2005, long accused of hosting a secret detention facility operated by the CIA where suspects were held and tortured between 2002 and 2005. As this report has documented, a stream of credible reports by the media, intergovernmental, and non-governmental organizations – coupled with official data from Polish governmental agencies – leaves little room for doubt that Poland is implicated.

The lawyers of both of the named victims – Abd al-Rahim al-Nashiri and Abu Zubaydah – maintain that the information now available is enough to trigger prosecutions, but the on-going Polish criminal investigation, shrouded in secrecy, drags on. Since its inception in 2008, the investigation has been plagued by sudden personnel changes, an unexplained shift from Warsaw to Kraków, and complaints by al-Nashiri’s and Abu Zubaydah’s representatives that prosecutors have frustrated their attempts to participate fully in the Polish proceedings. Other potential victims, such as Walid bin Attash, may be waiting in the wings, searching as well for justice in Poland.

Yet accusations abound of delay in the investigation as a deliberate tactic as a result of political influence on the process. Attempts to get answers from the Polish authorities are met with cryptic acknowledgements that ‘something happened’ in Poland; or denials of knowledge of or wrong-doing in relation to the operations; or . . . with silence. ...”

IV. RELEVANT DOMESTIC LAW

A. Criminal Code

1. Territorial jurisdiction

177. Article 5 of the Criminal Code ( Kodeks karny ), reads as follows:

“Polish criminal law shall apply to a perpetrator who has committed a criminal act on the territory of the Republic of Poland, as well as on board any Polish aircraft or vessel, unless otherwise provided for by an international agreement to which the Republic of Poland is a party.”

2. Offence of abuse of power

178. Article 231 § 1 of the Criminal Code, which defines the offence of abuse of power, reads as follows:

“A public official who, overstepping his powers or not fulfilling his duties, acts to the detriment of the public or private interests shall be liable to a sentence of imprisonment up to three years.”

3. Statute of limitation

179. Article 101 § 1 of the Criminal Code sets out rules for statute of limitation on punishment for criminal offences. It reads, in so far as relevant:

“Punishment for an offence shall be subject to limitation if, from the time of commission of the offence, the [following] period has expired:

1) 30 years – if an act constitutes a serious offence ( zbrodnia ) of homicide;

2) 20 years – if an act constitutes another serious offence;

2a) 15 years – if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 5 years;

3) 10 years – if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 3 years;

4) 5 years – in respect of other offences.

...”

180. Pursuant to Article 102, if during the limitation-periods referred to in the above provision, an investigation against a person has been opened, punishment for offences specified in § 1 (1-3) shall be subject to limitation after the expiry of 10 years and for other offences after the expiry of 5 years after the end of the relevant periods.

181. Article 105 lays down exclusion rules in respect of particularly serious crimes, including crimes under international law, homicide and certain forms of ill–treatment committed by a public official, which are not subject to any time-bar. It reads, in so far as relevant, as follows:

“1. Articles 101, [102] and ... shall not apply to crimes against peace, [crimes against] humanity and war crimes.

2. Articles 101, [102] and ... shall not apply to intentional offences of homicide, grievous bodily harm, grievous damage to health or deprivation of liberty with particular torment committed by a public official in connection with performing his duties.”

4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation)

182. Article 241 § 1 reads as follows:

“A person who disseminates to the public information [deriving from] a criminal investigation before that information has been disclosed in judicial proceedings shall be liable to a fine, restrictions on his liberty or a sentence of imprisonment up to two years.”

B. Code of Criminal Procedure

1. Prosecution of offences

183. Pursuant to Article 17 § 1 (6) of the Code of Criminal Procedure ( Kodeks postępowania karnego ), prosecution shall be time-barred if the statutory period of limitation for punishment has expired. This provision reads:

“[Criminal] proceedings shall not be instituted and, if instituted, shall be discontinued, if:

...

6) the statutory period of limitation on punishment has expired.”

184. Article 303 imposes on the authorities a duty to open an investigation of their own motion if there is a justified suspicion ( uzasadnione podejrzenie ) that an offence has been committed. It reads:

“If there is a justified suspicion that an offence has been committed, a decision to initiate an investigation shall be issued [by the authorities] of [their] own motion or upon a notification of offence. [That] decision shall specify an act subject to the proceedings and its legal characterisation.”

185. An offence shall be prosecuted by the authorities of their own motion . Exceptions from this rule concern only a few offences which cannot be prosecuted without a prior request ( wniosek ) from a victim (e.g. rape) or specific authority (e.g. certain military offences) and offences that can only be prosecuted by means of private prosecution ( oskarżenie prywatne) (e.g. minor assault or defamation).

186. Article 10 § 1 of the Code reads:

“In respect of offences prosecuted of their own motion, the authorities responsible for prosecution of offences are obliged to institute and carry out an investigation and the prosecutor [is obliged] to file and maintain an indictment.”

187. Pursuant to Article 304, every person, authority or institution that has become aware that an offence prosecuted of the authorities’ own motion has been committed has a civic duty ( obowiązek społeczny ) to notify the prosecutor or the police.

2. Classified materials

188. Article 156 § 4 of the Code, which entered into force on 2 January 2011, provides:

“If there is a risk of disclosing information classified as ‘secret’ or ‘top secret’, inspecting a case file, making copies or photocopying shall take place under conditions determined by the president of the court or the court. Certified copies or photocopies shall not be issued unless otherwise provided by law.”

189. Article 156 § 5, which concerns access to a case file during an investigation, reads:

“Unless otherwise provided by law, in the course of an investigation the parties, the defence counsel, and the legal representatives shall be given access to the case file, be able to make copies or photocopies and to obtain payable certified copies only with permission from the investigating prosecutor.

In exceptional cases, in the course of an investigation access to the case file can be given to third persons with the prosecutor’s permission.”

C. Laws on classified information and related ordinance

1. The laws on classified information

(a) Situation until 2 January 2011 – “the 1999 Act”

190. The law of 22 January 1999 on protection of classified information ( Ustawa o ochronie informacji niejawnych ) (“the 1999 Act”) was in force until 2 January 2011. On that date it was repealed, following the entry into force of the law of 5 August 2010 on protection of classified information (“the 2010 Act”).

Section 2 (1) of the 1999 Act defined a state secret as follows:

“A State secret is information included in the list setting out categories of information, constituting appendix no. 1, whose unauthorised disclosure may cause a considerable threat to the fundamental interests of the Republic of Poland concerning public order, defence, security and international or economic relations of the State.”

191. Pursuant to section 23(1)-(2) of the 1999 Act, classified information could be rated “top secret” ( ściśle tajne ), “secret” ( tajne ), “confidential” ( poufne ) or “restricted” ( zastrzeżone ).

Appendix no. 1 to the 1999 Act listed 29 categories of information that could be classified as “top secret”. These included “classified information exchanged by the Republic of Poland with the North Atlantic Treaty Organisation, European Union, West European Union and other international organisations and States, rated “top secret” or equivalent, if so required under international agreements – on the basis of the reciprocity principle”.

192. Section 50 of the 1999 Act obliged all the authorities that created, processed, transmitted and stored documents containing classified information rated as “confidential” or constituting a State secret, to set up secret registries.

193. Section 52 (2) of the 1999 Act provided, in so far as relevant:

“Documents marked ‘top secret’ and ‘secret’ can be released from the secret registry only if the recipient can secure the conditions for protection of those documents from unauthorised disclosure. In case of doubts regarding the securing of conditions for protection, the document can be made available only in the secret registry.”

(b) Situation as from 2 January 2011 – “the 2010 Act”

194. Pursuant to its section 1(1), the 2010 Act sets out principles for “the protection of information whose unauthorised disclosure, also in the course of its preparation and regardless of its form and the manner of its communication, hereinafter referred to as ‘classified information’, would or could cause damage to the Republic of Poland or would be to the detriment of its interests”.

Section 1(2) (1) states that the law applies to public authorities, in particular to Parliament, the President of the Republic of Poland, the public administration, the self-government authorities and its subordinate units, the courts and tribunals ( trybunały ), the State audit authorities and “the authorities responsible for the protection of law”.

195. The 2010 Act no longer refers to such notions as “State secret” or “official secret” ( tajemnica służbowa) but instead uses a more general term “classified information” ( informacje niejawne ), accorded four levels of protection depending on the importance of the classified material. Section 5 of the 2010 Act maintains the previous levels of classification, namely “top secret”, “secret”, “confidential” and “restricted”.

Classified information should be rated “top secret” if its unauthorised disclosure would cause an exceptionally grave damage to the Republic of Poland and “secret” if such a disclosure would cause a grave damage to its interests.

2. The 2012 Ordinance

196. The Ordinance of the Minister of Justice of 20 February 2012 on the handling of transcripts of questioning and other documents or items covered by the duty to maintain secrecy of classified information or the duty of secrecy related to the exercise of a profession or function ( Rozporządzenie Ministra Sprawiedliwości z dnia 20 lutego 2013 r. w sprawie sposobu postępowania z protokołami przesłuchań i innymi dokumentami lub przedmiotami, na które rozciąga się obowiązek zachowania tajemnicy informacji niejawnych albo zachowania tajemnicy związanej z wykonywaniem zawodu lub funkcji ) (“the 2012 Ordinance”) entered into force on 13 March 2012.

197. Paragraph 4.2 of the 2012 Ordinance provides that the court, or at the investigation stage, the prosecutor shall classify a case file or particular volumes of it as “top secret", “secret”, “confidential” or “restricted” if the file includes circumstances covered by the duty of secrecy of information classified as a State secret, an official secret or a secret related to the exercise of a profession or function. The case file, other documents or items classified as “top secret”, “secret” or “confidential” are to be deposited in the court’s or the prosecution’s secret registry.

Paragraph 6.1 of the 2012 Ordinance provides that classified files, documents or items shall be made available to parties, counsel and representatives only on the basis of an order issued by the court or its president, or, at the investigation stage, by the prosecutor.

In accordance with paragraph 6.2, an order referred to in the preceding provision, should indicate the person authorised to inspect the classified documents, case file or items and specify the scope, manner and place of the inspection. If the person concerned asks for the creation of a bound set of documents ( trwale oprawiony zbiór dokumentów ) for the purposes of taking notes, such a bound set of documents shall be made and classified appropriately.

In accordance with paragraph 6.3, a bound set of documents for taking notes shall be created for each person concerned separately. It shall be deposited and made available only in the court’s or the prosecution’s secret registry.

D. Law on intelligence agencies

198. The law of 24 May 2002 on the Internal Security Agency and the Intelligence Agency ( ustawa z dnia 24 maja 2002 r. o Agencji Bezpieczeństwa Wewnętrznego oraz Agencji Wywiadu ) (“the 2002 Act”), adopted as a measure reforming the former structures of the secret services, set up two civilian intelligence agencies.

The Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego – also called “ABW” in Polish) is responsible for the protection of the State’s internal security and the State’s constitutional order (section 1).

The Intelligence Agency (also called “AW” in Polish) is responsible for “the external protection of the State” (section 2). This includes foreign intelligence.

According to section 3 of the 2002 Act, the heads of both agencies are subordinate to the Prime Minister. Their activities are subject to Parliament’s oversight – through the Parliamentary Commission for Special Services ( Sejmowa Komisja do Spraw Służb Specjalnych ).

199. The tasks of the Intelligence Agency are enumerated in section 6(1). They include, among other things, the following:

1) obtaining, analysing, processing and transmitting to the relevant authorities information that may have a vital importance for security and international position of the Republic of Poland and its economic and defence potential;

2) identifying and counteracting external threats to the security, defence, independence and territorial integrity of the Republic of Poland;

...

5) identifying international terrorism, extremism and international organised-crime groups;

...

7) identifying and analysing threats occurring in regions of tensions, conflicts and international crisis which have an impact on the State’s security and taking actions aimed at eliminating those threats;

...

9) taking other actions specified in other laws and international agreements.”

200. Section 6(3) stipulates that the Intelligence Agency’s activities in the territory of Poland may be conducted exclusively in connection with their activities abroad.

201. Section 7 states, in so far as relevant, as follows:

“1. The Prime Minister determines the directions for the agencies’ actions by means of guidelines.

...

3. The heads of the agencies, each within his competence, shall submit, by 31 January, a annual report on the agency’s activities for the previous calendar year.”

202. Section 8 provides:

“1. In order to accomplish the agencies’ tasks, the heads of the agencies, each within his competence, may cooperate with the relevant authorities and services of other States.

2. Cooperation referred to in section 1 may be sought after obtaining the Prime Minister’s consent.”

203. Chapter 2 of the 2002 Act deals with the Cabinet Committee for Special Services ( Kolegium do Spraw Służb Specjalnych ) – a consultative-advisory body chaired by the Prime Minister.

Pursuant to section 11, the Committee exercises its competence in respect of “programming, supervising and coordinating” activities of special services, namely the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency ( Służba Kontrwywiadu Wojskowego ), the Military Intelligence Agency ( Służba Wywiadu Wojskowego ) and the Central Anti-Corruption Bureau ( Centralne Biuro Antykorupcyjne ), as well as activities undertaken in view of State security by the police, the Border Guard, the Military Police, the Prison Service, the Office for the Government Protection, the Customs, military information services and the tax authorities.

The Committee comprises the Prime Minister, Secretary to the Committee, the Minister for the Interior, the Minister for Foreign Affairs, the Minister for Defence, the Minister for the Treasury and the Head of the National Security Bureau ( Biuro Bezpieczeństwa Narodowego ) from the President of Poland’s Chancellery. The Heads of the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency, the Military Intelligence Agency, the Central Anti-Corruption Bureau and the President of the Parliamentary Committee for Special Services attend the Committee’s meetings (section 12(2)-(3)).

204. Under section 18(1), the Heads of the Internal Security Agency and the Intelligence Agency, each within his competence, have a duty “to supply promptly” the President of the Republic of Poland and the Prime Minister with any information that may have a vital importance for Poland’s security and its international position.

205. The Head of the Intelligence Agency may allow officers or staff members to supply classified information to a specific person or institution (section 39). He has full discretion in granting or refusing the disclosure of classified information. Only if so ordered by the First President of the Supreme Court in the review procedure under section 39(6) is he obliged to disclose classified information. This exception, however, is limited to proceedings for crimes against peace, crimes against humanity and war crimes referred to in Article 105 § 1 of the Criminal Code (see paragraph 181 above) and serious fatal offences.

Section 39(6) reads, in so far as relevant, as follows:

“If, despite a request from a court or prosecutor made in connection with criminal proceedings for an offence defined in Article 105 § 1 of the Criminal Code or serious offence against human life or an offence against life and health causing death, [the head of the Intelligence Agency] has refused to exempt an officer or staff member ... from his duty to maintain secrecy of materials classified ‘secret’ or ‘top secret’ or refused to disclose materials ... classified ‘secret or ‘top secret’, he shall submit the materials requested and [his] explanation to the First President of the Supreme Court.

If the First President of the Supreme Court finds that granting the court’s or the prosecutor’s request is necessary for the proper course of the proceedings, the head of ... the Intelligence Agency is obliged to issue an exemption from secrecy or to disclose materials covered by secrecy.”

V. RELEVANT INTERNATIONAL LAW

A. Vienna Convention on the Law of Treaties

206. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Poland is a party, provide as follows:

Article 26 “ Pacta sunt servanda ”

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Article 27 Internal law and observance of treaties

“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ...”

B. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

207. The relevant parts of the Articles (“the ILC Articles”), adopted on 3 August 2001 ( Yearbook of the International Law Commission , 2001, vol. II), read as follows:

Article 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.”

C. International Covenant on Civil and Political Rights

208. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Poland 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.”

D. The United Nations Torture Convention

209. One hundred and forty-nine States are parties to the 1984 United Nations 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 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.”

210. 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.”

211. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

E. UN General Assembly Resolution 60/147

212. 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:

“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”.

VI. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

213. The applicant, Mr Abu Zubaydah 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 in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below.

A. United Nations Organisation

1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002

214. 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

215. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture (“the IRCT”) submitted a statement in which it expressed its concern over the United States’ reported use of “stress and duress” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights 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)

216. 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. Other international 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.

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 Washington Post ’s article: “U.S. Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to “stress and duress” techniques, including “standing or kneeling for hours” and being “held in awkward, painful positions”.

It further stated:

“The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.”

4. International 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:

“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.”

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 Poland’s complicity in the CIA rendition programme. It was given 2 days after the Washington Post had published material revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries” (see also paragraph 228 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 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 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.

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.

C. 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

229. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows:

“1. The Parliamentary Assembly:

i. 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.

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:

i. 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;

ii. 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;

iii. 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.”

D. Media reports and articles

1. International media

230. On 2 April 2002 ABC News reported:

“US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea. 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.”

231. Two Associated Press reports of 2 April 2002 stated:

“Zubaydah is in US custody, but it’s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay, Cuba, or will be transported to a separate location.”

and:

“US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or transferred to a third country.”

232. 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.

233. 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 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.