8 October 2010

FIFTH SECTION

Application no. 39630/09 by Khaled EL-MASRI against the former Yugoslav Republic of Macedonia lodged on 20 July 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Khaled El-Masri, is a German national of Lebanese descent who was born in 1963 in Kuwait and lives in Ulm , Germany . He is represented before the Court by Mr J. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative (“OSJI”), Mr R. Skilbeck , Barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Mr F. Medarski, member of the Macedonian Bar and Mr D. Pavli, staff attorney at the OSJI.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s version of events [1]

a) Travel to the former Yugoslav Republic of Macedonia

On 31 December 2003 the applicant boarded a bus in Ulm , Germany with a view to visit ing Skopje for a brief holiday. At around 3 p.m. he arrived at the Serbian/ Macedonian border crossing at Tabanovce. A suspicion arose as to the validity of his recently-issued German passport . A border official checked his passport and asked him about the purpose of his trip as well as about the length and location of his intended stay. A Macedonian entry stamp of 31 December 2003 was affixed in his passport [2] . On that occasion, h is personal belongings were searched and he was questioned about possible ties with several Islamic organis ations and groups. The interrogation ended at 10 p.m. A ccompanied by men in civilian clothes who were armed , h e was driven to a hotel, which later research indicated was the hotel “Skopski Merak” in Skopje [3] (“the hotel”) .

b) Incommunicado detention in the hotel

The applicant was taken to a room on the top floor of the hotel. During his detention at the hotel, he was watched by a team of nine men, who changed shift every six hours. He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened that he would be shot. After seven days of confinement, another official arrived and offered him a deal, namely that he would be returned to Germany in return for a confession that he was a member of Al-Qaeda.

On the thirteenth day of his confinement, the applicant commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the ten remaining days of his detention in the former Yugoslav Republic of Macedonia . A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany .

c) Transfer to Skopje airport

On 23 January 2004 at around 8 p.m., the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany . Handcuffed and blindfolded, he was put in a car and taken to the Skopje airport.

d) Handover to a CIA “ rendition ” [4] team at Skopje airport

Upon arrival, still handcuffed and blindfolded, he was initially placed in a chair where he sat for one and a half hours. He was told that he would be taken into a room for a medical examination before his transport to Germany . Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus. He was then pulled from the floor and dragged to a corner of the room where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a diaper. He was then dressed in a dark blue short-sleeved track suit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him, blindfolded and hooded him. They bent him over, forcing his head down and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. Anaesthesia was also put over his nose. He was mostly unconscious during the flight. A Macedonian exit stamp dated 23 January 2004 was affixed to the applicant ’ s passport. [5]

According to the applicant, his pre-flight treatment at the Skopje airport, “most likely at the hands of the special CIA rendition team”, was remarkably consistent with a recently disclosed CIA document describing the protocol for the so-called “capture shock” treatment. [6]

e) Flight from Skopje to Afghanistan

Upon landing, the applicant disembarked. It was warmer outside than it had been in the former Yugoslav Republic of Macedonia , which was sufficient for him to conclude that he had not been returned to Germany . He deduced later that he was in Afghanistan and that he had been flown via Baghdad . [7]

f) Detention and Interrogation in Afghanistan

After landing in Afghanistan , t he applicant was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi hand-writing. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow. Through a window at the top of the cell, he saw a red, setting sun. Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the “ Salt Pit ” , a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects.

During his confinement, he was interrogated on three or four occasions, each t ime by the same man who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German government were ignored.

In March 2004 the applicant, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charges. As a consequence of the conditions of his confinement and his hunger strike, the applicant ’ s health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested this on several occasions .

On 10 April 2004 , the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it. After this procedure, the applicant was given some canned food , as well as some books to read.

Following his force-feeding, the applicant became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days. Around that time, the applicant felt what he believed to be a minor earthquake. Geological data confirmed that an earthquake occurred in the area neighbouring Kabul (see the 2006 Marty report below) .

On 16 May 2004 the applicant was visited by a German speaker who identified himself only as “ Sam ” . The latter visited the applicant three more times prior to his release.

On 21 May 2004 the applicant began his second hunger strike.

g) Disguised " reverse-rendition " to Albania

On 28 May 2004 the applicant, blindfolded and hand-cuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje . He was told to change back into the clothes he had worn upon his arrival in the former Yugoslav Republic of Macedonia and was given two new t-shirts, one of which he put on. He was then taken to the waiting aircraft, blindfolded and ear-muffed, and there chained to his seat. “Sam” accompanied him on the aircraft. He said that the plane would land in a European country other than Germany , but that the applicant would eventually continue on to Germany .

When the aircraft landed, the applicant, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. The applicant was aware of men getting out of the car and then of men getting in. All of the men had Slavic sounding accents, but said very little. Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia . The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed the applicant ’ s long hair and long beard and told him he looked like a terrorist. He was then driven to the Mother Theresa airport in Tirana. He was guided through customs and immigration control without inspection and put on a plane to Frankfurt , Germany . An Albanian exit stamp was affixed to the applicant ’ s passport.

h) Arrival in Germany

On 29 May 2004 at 8 . 40 a.m. the applicant arrived at Frankfurt International Airport . He was about eighteen kilos lighter than when he had left Germany , his hair was long and unkempt and he h ad not shave d since his arrival in the former Yugoslav Republic of Macedonia . Immediately after arrival in Germany , the applicant met Mr M. Gnjidic, a lawyer practicing in Ulm . He has brought a number of actions since then.

2. The position of the Government of the former Yugoslav Republic of Macedonia as regards the applicant ’ s allegations, as noted in the reports adopted following certain relevant international inquiries

a) Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States (“the 2006 Marty report”)

On 13 December 2005 the President of the Parliamentary Assembly of the Council of Europe (“PACE”) asked the Committee on Legal Affairs and Human Rights (“the Committee”) to investigate the allegations of “extraordinary renditions” in Europe . Senator Dick Marty of Switzerland was appointed as a special rapporteur. On 12 June 2006 the PACE published the 2006 Marty report [8] . It set out the position of the Macedonian authorities regarding the applicant ’ s case. [9] It stated inter alia :

“3.1.3.1. The position of the authorities

106. The “official line” of the Macedonian Government was first contained in a letter from the Minister of Interior [his name], to the Ambassador of the European Commission [his name] dated 27 December 2005. In its simplest form, it essentially contains four items of information “ according to police records ”: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4 pm on 31 December 2003; second, he was interviewed by “ authorised police officials ” who suspected “ possession of a falsified travel document ”; third, approximately five hours later, Mr El-Masri “ was allowed entrance ” into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo ...

108. The President of the Republic [his name] set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: “ Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth. ”

109. On Friday 28 April the official position was presented in far greater detail during a meeting with [his name] who was Head of the UBK, Macedonia ’ s main intelligence service, at the time of the El-Masri case. [his name] stated that the UBK ’ s “Department for Control and Professional Standards” had undertaken an investigation into the case and traced official records of all Mr El-Masri ’ s contact with the Macedonian authorities. The further details as presented by [his name] are summarized as follows:

Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year ’ s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents. Upon examining Mr El-Masri ’ s passport, the Macedonian border police developed certain suspicions and decided to “ detain him ”. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey. The objective of holding Mr El-Masri was to conduct an interview with him, which (according to [his name]) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as “Integrated Border Management and Security”. UBK officials participated in the interview of Mr El-Masri. The officials enquired into Mr El-Masri ’ s reasons for travelling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. [His name] explained: “I think these were all standard questions that are asked in the context of such a routine procedure – I don ’ t think I need to go into further details”. At the same time, Macedonian officials undertook a preliminary visual examination of Mr El-Masri ’ s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait , yet claimed to possess German citizenship. A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol ’ s network, so the information had to be transmitted to Skopje , from where an electronic request was made to the central Interpol database in Lyon . A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out. When it was established that there existed no Interpol warrant against Mr El-Masri and no further grounds on which to hold him, he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior [his name] said: “ we ’ re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we ’ re not in a position to know how he travelled further ”

The Ministry of Interior subsequently established ... that Mr El-Masri had stayed at a hotel in Skopje called the “Skopski Merak”. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the Guest Book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004.

The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo . When asked whether Mr El-Masri had received a stamp to indicate his departure by this means, (the Head of the UBK) answered: “ Normally there should be a stamp on the passport as you cross the border out of Macedonia , but I can ’ t be sure. UNMIK is also present on the Kosovo border and is in charge of the protocol on that side... My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn ’ t receive a stamp on either occasion. ”

116. What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis ... did the person in question have contact with terrorist movements, in particular with Al Qaida? Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he could be handed over to the CIA for transfer. ”

b) Council of Europe : The Article 52 Procedure [10]

On 21 November 2005 the Secretary-General of the Council of Europe invoked the procedure under Article 52 of the European Convention on Human Rights with regard to reports of European collusion in secret rendition flights. Member States were required to provide a report on the controls provided in their internal law over acts by foreign agents in their jurisdiction, on legal safeguards to prevent unacknowledged deprivation of liberty, on legal and investigative responses that were taken to address alleged infringements of Convention rights and on whether public officials who were allegedly involved in acts or omissions leading to such deprivation of liberty of detainees had been or were being investigated.

On 17 February and 3 April 2006 respectively, the Government replied to this request [11] . In this latter submission, the respondent Government stated their position as regards the applicant ’ s case. They stated inter alia :

“... As far as the case of Mr Khaled El-Masri is concerned, we would like to inform you that this case was examined by the Ministry of Internal Affairs and the information about it was sent to the representatives of the European Commission in the Republic of Macedonia, to the Director for Western Balkans in DG Enlargement in the European Commission in Brussels and to members of the European Parliament as early as June 2005. The Ministry of Internal Affairs of the Republic of Macedonia informs that, based on the police records on entry and exit at the state border of the Republic of Macedonia, Mr Khaled El-Masri arrived, by bus, at the Tabanovce border crossing from the State Union of Serbia and Montenegro on 31 December 2003 at 4 p.m. presenting a German passport. Suspecting possession of a forged travel document, the competent police officers checked the document and interviewed Mr Khaled El-Masri at the border crossing. A check in the Interpol records was also carried out which showed that no international arrest warrant had been issued for Mr El-Masri. Mr Khaled El-Masri was allowed to enter the Republic of Macedonia on 31 December 2003 at 8.57 p.m. According to the police records, Mr Khaled El-Masri left the Republic of Macedonia on 23 January 2004 at the Blace border crossing to the State Union of Serbia and Montenegro (on the Kosovo section).”

3. Media reports on alleged rendition and human rights violations occurring in Guantanamo Bay and Afghanistan

The applicant submitted a considerable number of articles published prior to January 2004 in “ Utriniski Vesnik ”, “ Dnevnik ” and “ Vest ”, daily newspapers in the former Yugoslav Republic of Macedonia . He also provided copies of newspaper articles published in “ Washington Post ”, “ Wall Street Journal ”, “ Chicago Tribune ”, “ The Observer ” and “ The Independent ” which reported in 2002-2003 on alleged rendition of suspects for terrorist-related activities. Further reference was made to reports of 2002-2003 by Amnesty International, Human Rights Watch and the International Helsinki Federation for Human Rights which provided information regarding abduction and transfer of detainees to Guantanamo and the conditions of detention.

4. International inquiries related to the applicant ’ s case

There have been a number of international inquiries into allegations of “extraordinary renditions” in Europe and the involvement of European Governments. The reports referred to the applicant ’ s case.

a) Parliamentary Assembly of the Council of Europe - ‘‘ the Marty Inquiry"

i) The 2006 Marty report

The 2006 Marty report stated inter alia :

“ A. Draft resolution

7. The facts and information gathered to date, along with new factual patterns in the process of being uncovered, indicate that the key elements of this “spider ’ s web” have notably included : a world-wide network of secret detentions on CIA “black sites” and in military or naval installations; the CIA ’ s programme of “renditions”, under which terrorist suspects are flown between States on civilian aircraft, outside of the scope of any legal protections, often to be handed over to States who customarily resort to degrading treatment and torture; and the use of military airbases and aircraft to transport detainees as human cargo to Guantanamo Bay in Cuba or to other detention centres ...

11. Attempts to expose the true nature and extent of these unlawful operations have invariably faced obstruction or dismissal, from the United States and its European partners alike. The authorities of most Council of Europe member States have denied their participation, in many cases without actually having carried out any inquiries or serious investigations ...

287. W hilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe ...

2.7.1. CIA methodology – how a detainee is treated during a rendition?

... Collectively, the cases in the report testify to the existence of an established modus operandi on rendition, put into practice by an elite, highly-trained and highly-disciplined group of CIA agents ... ”

The Skopje airport was categorised in the 2006 Marty report as a “one-off pick-up point” [12] .

As to the applicant ’ s case, the 2006 Marty report stated inter alia :

“ 3. Specific examples of documented renditions

3.1. Khaled El-Masri

92. We spoke for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months.

3.1.2. Elements of corroboration for Mr El-Masri ’ s account

102. Mr El-Masri ’ s account is borne out by numerous items of evidence, some of which cannot yet be made public because they have been declared secret, or because they are covered by the confidentiality of the investigation underway in the office of the Munich prosecuting authorities following Mr El-Masri ’ s complaint of abduction.

103. The items already in the public domain are cited in the afore-mentioned memorandum submitted to the Virginia court in which Mr El-Masri lodged his complaint:

• Passport stamps confirming Mr El-Masri ’ s entry to and exit from Macedonia , as well as exit from Albania , on the dates in question;

• Scientific testing of Mr El-Masri ’ s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri ’ s account that he spent time in a South-Asian country and was deprived of food for an extended period of time;

• Other physical evidence, including Mr El-Masri ’ s passport, the two t-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors;

• Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case, then registered by the FAA as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at the Skopje airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital [13] ;

• Witness accounts from other passengers on the bus from Germany to Macedonia , which confirm Mr El-Masri ’ s account of his detention at the border;

• Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr El-Masri has identified both his actual room and a staff member who served him food;

• Geological records that confirm Mr El-Masri ’ s recollection of minor earthquakes during his detention in Afghanistan [14] ;

• Evidence of the identity of ‘ Sam ’ whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services;

• Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognizable to another rendition victim who was detained by the U.S. in Afghanistan ;

• Photographs taken immediately upon Mr El-Masri ’ s return to Germany that are consistent with his account of weight loss and unkempt grooming.

...

125. All these factual elements indicate that the CIA carried out a “rendition” of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same “ rendition circuit ” . The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA ’ s systematic “ rendition methodology ” described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the “spider ’ s web ” .

...

127. It is worth repeating that the analysis of all facts concerning this case points in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning of the term established by the case-law of the United Nations Committee against Torture ...”

ii) Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report (“the 2007 Marty report” ) [15]

In his report of 11 June 2007, Senator Marty stated inter alia :

“ 5. Some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of “state secrets”. Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences ... The same approach led the authorities of “the former Yugoslav Republic of Macedonia” to hide the truth and give an obviously false account of the actions of its own national agencies and the CIA in carrying out the secret detention and rendition of Khaled El-Masri.

...

275. ... We were able to prove the involvement of the CIA in Mr El-Masri ’ s transfer to Afghanistan by linking the flight that carried him there – on the aircraft N313P, flying from Skopje (“the former Yugoslav Republic of Macedonia”) to Baghdad (Iraq) to Kabul (Afghanistan) on 24 January 2004 – to another known CIA detainee transfer on the same plane two days earlier, thus establishing the first “ rendition circuit. ”

276. Upon Mr El-Masri ’ s arrival in Afghanistan , he was taken to a CIA secret detention facility near Kabul and held in a “ small, filthy, concrete cell ” for a period of over four months. During this period the CIA discovered that no charges could be brought against him and that his passport was genuine, but inexplicably kept Mr El-Masri in his squalid, solitary confinement for several weeks thereafter.

...

279. Today I think I am in a position to reconstruct t he circumstances of Mr El-Masri ’ s return from Afghanistan: he was flown out of Kabul on 28 May 2004 on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called Bezat-Kuçova Aerodrome . ”

b) The European Parliament: the Fava Inquiry

On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe [16] . The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia , the United States , Germany , the United Kingdom , Romania , Poland and Portugal .

It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. During their visit to the former Yugoslav Republic of Macedonia , the Inquiry met with high-ranking officials.

On 6 July 2006 the European Parliament adopted a resolution [17] , which stated inter alia :

“19. Condemns the abduction by the CIA of the German national, Khaled el Masri, who was held in Afghanistan from January to May 2004 and subjected to degrading and inhuman treatment; notes further the suspicion – not yet allayed – that Khaled el Masri was illegally held before that date, from 31 December 2003 to 23 January 2004, in the Former Yugoslav Republic of Macedonia and that he was transported from there to Afghanistan on 23-24 January 2004; considers the measures that the Former Yugoslav Republic of Macedonia claims to have taken to investigate the matter to be inadequate ...

42. Condemns the fact that the German national, Khalid El-Masri, was held illegally in Afghanistan for more than four months in 2004; deplores the reluctance of the authorities of the Former Yugoslav Republic of Macedonia to confirm that El-Masri was in Skopje and was probably being held there before his rendition to Afghanistan by CIA agents ...”

On 30 January 2007, the final report of the Fava Inquiry was published [18] . Noting the lack of thorough investigation by the respondent State, the report stated inter alia :

“136. Condemns the extraordinary rendition of the German citizen Khaled El-Masri abducted at the border-crossing Tabanovce in the Former Yugoslav Republic of Macedonia on 31 December 2003, illegally held in Skopje from 31 December 2003 to 23 January 2004 and then transported to Afghanistan on 23-24 January 2004 where he was held until May 2004 and subjected to degrading and inhuman treatment;

...

138. Fully endorses the preliminary findings of Munich Public Prosecutor Martin Hofmann that there is no evidence on the basis of which to refute Khaled El-Masri ’ s version of events;.. .”

The report also emphasised that “the concept of ‘ secret detention facility ’ includes not only prisons, but also places where somebody is held incommunicado , such as private apartments, police stations or hotel rooms, as in the case of Khaled El-Masri in Skopje”.

c) United Nations Human Rights Committee

In the course of the periodic review [19] of the respondent State ’ s compliance with the International Covenant on Civil and Political Rights conducted by the UN Human Rights Committee during its March-April 2008 session, the latter “ noted the investigation undertaken by the State party and its denial of any involvement in the (applicant ’ s) rendition notwithstanding the highly detailed allegations as well as the concerns [raised by the Marty and Fava inquiries]”. The UN Human Rights Committee made the following recommendation:

“14. ...t he State party should consider undertaking a new and c omprehensive investigation of the allegations made by Mr Khaled al-Masri. The investigation should take account of all available evidence and seek the cooperation of Mr E l-Masri himself ...”

This recommendation was supported by the Commissioner for Human Rights of the Council of Europe in his report published on 11 September 2008 [20] .

d) The applicant ’ s petition before the Inter-American Commission of Human Rights against the US

On 9 April 2008 the applicant filed a petition with the Inter-American Commission of Human Rights. On 23 August 2009 the Commission transmitted the petition to the U.S. Government for comments. No further information was provided in respect of these proceedings.

6. Relevant proceedings before national authorities, other than those of the respondent State

a) Germany

i) Investigation by the German prosecuting authorities

On an unspecified date in 2004, the Munich Prosecuting Office opened an investigation into the applicant ’ s allegations that he had been unlawfully abducted, detained, physically and psychologically abused and interrogated in the former Yugoslav Republic of Macedonia and Afghanistan . According to the applicant, a number of investigative actions have been taken, including an examination of eye-witnesses who had confirmed that the applicant had travelled to the former Yugoslav Republic of Macedonia by bus at the end of 2003 and that he had been detained shortly after entering that State.

Furthermore, a radioactive isotope analysis was made of the applicant ’ s hair. An expert report of 17 January 2005 stated inter alia :

“... it is very likely that the observed changes in the here included isotopic signatures [of the applicant ’ s hair] in fact correspond to [the applicant ’ s] statements...”

According to the BND Investigative Committee of the German Bundestag (see below), the radioisotope analysis also confirmed that the applicant had undergone two hunger strikes [21] .

On 31 January 2007 the German Prosecutor issued arrest warrants for thirteen CIA agents for their involvement in the applicant ’ s alleged rendition. The names of the people sought were not made public. The identities of the CIA agents were given to the German Prosecutor allegedly by Spanish authorities who had uncovered them in the course of their investigation into the use of Spanish airports by the CIA.

ii) German Parliamentary Inquiry

On 7 April 2006 the German Bundestag appointed the First Investigative Committee of the Sixteenth Legislative Period of the Federal Parliament (“the BND Investigative Committee”) to review the activities of the secret services. Over a period of investigation of three years, the Committee held a total of 124 sessions, seven areas of investigations were addressed and a total of 141 witnesses were heard, including the applicant. The findings of the BND Investigative Committee were made public on 18 June 2009.

The BND Investigative Committee Report, which runs altogether on 1430 pages, stated inter alia [22] :

“...Khaled El-Masri ’ s report on his imprisonment in Macedonia and in Afghanistan is credible as to the core facts of his detention in Macedonia and his transfer to Afghanistan , as well as his confinement there by United States forces. Doubts remain, however, about some partial aspects of his account.

The police investigations conducted by Swabian law enforcement and supported by the BKA ( Bundeskriminalamt - German Federal Criminal Police) reaffirm Mr El-Masri ’ s account. His trip to Macedonia on 31 December 2003 was corroborated by witnesses. El-Masri ’ s account of the transfer from Macedonia to Afghanistan by United Stales forces is consistent with subsequent reports from other victims of the excesses of ‘ war on terror ’ by the United States government at the time. The recorded movement of an American Boeing 737 of the putatively CIA airline ‘ Aero-Contractors ’ that flew from Mallorca to Skopje on 23 January 2004 and continued on to Kabul , matches ‘ the temporal information that Mr. El-Masri provided on the duration of his confinement at a Macedonian hotel ...

All this supports the Committee ’ s profound doubts about the official Macedonian version of the events... The Macedonian Government continues to deny his detention at the hotel and his transfer to Afghanistan , calling this a defamatory media campaign. This official account of the events by Macedonia is clearly incorrect. Rather, it must be found that convincing evidence exists for El-Masri ’ s account of the course of his arrest and transfer outside the country...” (p.353)

According to the report, doubts remain about the actual purpose of the applicant ’ s trip to Skopje and significant discrepancies were noted in the applicant ’ s statements concerning his questioning in the former Yugoslav Republic of Macedonia and Afghanistan , in particular his suspicion on the German background of “Sam”.

b) Legal action in the United States

On 6 December 2005 the American Civil Liberties Union (ACLU) filed a claim on behalf of the applicant in the United States District Court for the Eastern District of Virginia against a number of defendants including the former CIA director George Tenet and certain unknown CIA agents [23] . The claim alleged that the applicant had been deprived of liberty in absence of legal process and included a claim under the Alien Tort Statute (ATS) for violations of international legal norms prohibiting prolonged arbitrary detention and cruel, inhuman or degrading treatment.

In May 2006 the District Court dismissed the applicant ’ s claim finding that the U.S. Government had validly asserted the state secrets privilege. The District Court held that the state ’ s interest in preserving state secrets outweighed the applicant ’ s individual interest in justice [24] . This decision was confirmed on appeal by the United States Court of Appeals for the Fourth Circuit [25] . In October 2007 the Supreme Court refused to review the case [26] .

7 . Proceedings taken in the former Yugoslav Republic of Macedonia regarding the alleged arrest, confinement and ill-treatment

a) Internal disciplinary proceedings before the Department for Control and Professional Standards within the Ministry of the Interior (DCPS)

In 2005 there was an internal inquiry undertaken by the DCPS within the Ministry of Internal Affairs into the applicant ’ s claims. The applicant was not invited to produce any evidence before this Department nor was he informed about the outcome of this investigation. According to the applicant, the results of this inquiry were not communicated to him, but to the representatives of the EU in the respondent State.

b) Criminal proceedings against unknown law enforcement officials

On 6 October 2008 the applicant lodged with the Skopje Public Prosecutor ’ s Office a criminal complaint against unidentified law enforcement officials on account of his unlawful detention and abduction punishable under Article 140 of the Criminal Code. The request also alleged the crime of torture or other inhuman or degrading treatment or punishment, punishable under Articles 142 and 143 of the Criminal Code. In support, he produced the following evidence: a copy of his passport; relevant extracts from the 2006 and 2007 Marty reports and the Fava inquiry (see above); a copy of the aviation logs; a letter by the Skopje airport authorities attesting that on 23 January 2004 an aircraft Boeing 737 registered by the FAA as N313P , landed on the Skopje airport without passengers and that it took off on 24 January 2004 carrying only one passenger; a translated version of the expert report of the applicant ’ s hair; and sketches of the hotel room, where the applicant had been allegedly detained.

According to the applicant, to date, the public prosecutor has taken no discernible action nor has he been notified of any investigative action taken.

c) Civil proceedings for damages

On 24 January 2009 the applicant filed a civil action for damages against the State/ the Ministry of the Interior in relation to his alleged unlawful abduction and ill-treatment. The claim was based on Article 141 of the Obligations Act. The applicant claimed that he had been subject to physical pain and intense mental pain and fear that he would be killed during his detention. Beside the evidence submitted in his criminal complaint (see above), the applicant requested that the civil courts hear oral evidence from him and that a psychological examination be undertaken. The case is pending before the Skopje Court of First Instance .

B. Relevant domestic law

The Constitution of 1991 ( Устав)

Under Article 12 §§ 1, 2 and 4 of the Constitution, the right to liberty is irrevocable. No one shall be deprived of his liberty except by a court decision and in the cases and under a procedure prescribed by law. Everyone detained must be brought immediately, but no later than twenty-four hours from the detention, before a court that must decide about the lawfulness of the detention without any delay.

Criminal Code ( Кривичен законик )

Section 140 of the Criminal Code provides that a person who unlawfully detains, holds in custody or otherwise restricts someone ’ s freedom of movement is to be fined or punished by a term of imprisonment of one year. An official who unlawfully deprives someone of his or her liberty is to be punished by a term of imprisonment of six months to five years.

Section 142 of the Criminal Code punishes acts of torture, providing for a prison term of three months to five years.

Section 143 of the Criminal Code provides that a person who, in the performance of his official duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years.

Criminal Procedure Act ( Закон за кривичната постапка )

Section 188(2) provided that officials of the Ministry of the Interior could arrest without a court order anyone suspected of committing an offence prosecutable by automatic operation of the law. The arrested person had to be brought promptly before an investigating judge. In accordance with section 188(3) and as an exception to the general rule, Ministry officials could detain a person if it was necessary to determine his or her identity; to verify his or her alibi or if there were other grounds requiring the collection of information to enable proceedings to be brought against a third party. Such detention could be effected only if the requirements for pre-trial detention, as set forth in sections 184(1)(1) and (1)(3), were met. Section 184(4) required the arrested person to be given the information referred to in section 3 of the Act. Section 184(6) provided that detention pursuant to section 184(3) could not exceed twenty-four hours. The Ministry official was required either to release the arrested person or to proceed in accordance with section 184(2).

Sections 527(2) and 528, which related to compensation for wrongful conviction and unjustified detention, stipulated that the party concerned had to lodge any claim for damages with the Ministry of Justice in the first instance and to indicate the requested form and amount of any settlement. If the compensation claim was not upheld or the Ministry of Justice failed to decide it within three months from the date the claim was brought, the party concerned could claim compensation in the court of competent jurisdiction.

In accordance with sections 530(1) (3) and 530(2), a person was entitled to compensation if he or she had been unjustifiably deprived of his or her liberty through the fault or unlawful conduct of a body. A person unlawfully arrested under section 188 of the Act could claim compensation.

Other relevant provisions of the Criminal Proceedings Act were described in the Jasar case ( Jasar v. the former Yugoslav Republic of Macedonia , no. 69908/01, §§ 33-40 , 15 February 2007 ).

Obligations Act ( Закон за облигационите односи)

Section 141 of the Obligations Act defines different grounds for claiming civil compensation.

COMPLAINTS

The applicant complained under Articles 3, 5, 8 , 10 and 13 of the Convention. Relying on Articles 3, 5 and 8, the applicant complained that the respondent State had been responsible for the alleged ill-treatment inflicted on him while he was detained in the hotel and for having failed to prevent him from being subjected to “capture shock” treatment when transferred to the CIA rendition team at the Skopje airport. He further complained that the respondent State had been responsible for the al leged ill-treatment inflicted on him during his detention in the Salt Pit in Afghanistan by having knowingly transferred him into the custody of U.S. agents even though there had been substantial grounds for believing that there was a real risk of such ill-treatment. In this latter context, he complained that the conditions of detention, physical assaults, inadequate food and water, sleep deprivation, forced feeding and lack of any medical assistance during his detention in Salt Pit amounted to treatment contrary to Article 3 of the Convention. In respect of Articles 5 and 8 , he alleged the direct responsibility of the respondent State for the entire period of captivity between 31 December 2003 and his return to Albania on 28 May 2004. In this connection, he complained that he had been detained unlawfully and kept incommunicado , without any arrest warrant, and that he had never been brought before a judge. The absence of a prompt and effective investigation by the Macedonian authorities into his credible allegations had been in breach of Articles 3 , 5 and 13 of the Convention. Lastly, he argued that he and the public , as a whole , had a right , under Articles 3, 5, 10 and 13 to the truth as to whether he had been subject to the secret rendition programme.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? When did the six-month period start to run ? In this connection and given the particular circumstances of the case, can it be considered that the applicant became aware or ought to have become aware that the actions taken before the national authorities might not be effective in his case more than six-months before he introduced the application before the Court (see, mutatis mutandis , Bayram and Yildirim v. Turkey (dec.) , no. 38587/97, 29 January 2002 ?)

2. Was the applicant ’ s compensation claim under section 141 of the Obligations Act an adequate domestic remedy within the meaning of Article 35 § 1 of the Convention , in respect of his complaints under Article 5 of the Convention? In particular , should compensation have been sought instead under the rules relating to unlawful and unjustified detention specified in the Criminal Proceedings Act ( sections 527(2) and 528 ) ? The Government are invited to submit copies of relevant domestic case-law.

3. In the light of the applicant ’ s allegations under Article 3 of the Convention and the documents which have been submitted:

a) Was the applicant subjected to treatment contrary to Article 3 of the Convention, by agents of the respondent State while staying in the “Skopski Merak” hotel between 31 December 2003 and 23 January 2004?

b) Was the applicant handed over to a CIA “ rendition team ” at Skopje airport by agents of the respondent State? If so, was he subjected on that occasion and in Skopje airport by these U.S. agents to treatment contrary to Article 3 of the Convention? Can the respondent State be held responsible for such treatment?

c) Given the available information at the relevant time, was the respondent State aware that the applicant faced a real risk of being subjected to torture or inhuman or degrading treatment if transferred to the CIA-run facility known as “ Salt Pit ”, in Afghanistan ? If so, can the respondent State be held responsible?

d) Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV) provided by Article 3, has there been any effective official investigation in the present case, as required under Article 3 of the Convention? In this respect,

i) did the office of the public prosecutor take any investigative measure of its own motion before the applicant brought the complaint on 6 October 2008?

ii) what steps have been taken:

- to establish the purpose of the landing of the aircraft which Skopje airport authorities mentioned in their letter attached to the applicant ’ s criminal complaint (see “the Facts”)?

- to determine the identity of the passenger who had boarded that aircraft ?

- to uncover the truth as regards the applicant ’ s stay in the “Skopski Merak” hotel? Has evidence been taken from the hotel personnel who were on duty between 31 December 2003 and 23 January 2004? What measures have been taken to determine the identity of the waiter who , according to the applicant, had served food to him while he was allegedly detained in the hotel?

iv) what other investigative measures have been taken in respect of the applicant ’ s criminal complaint?

4. Was the applicant detained in the “Skopski Merak” hotel between 31 December 2003 and 23 January 2004 by the police forces of the respondent State? If so, was the applicant ’ s detention “in accordance with a procedure prescribed by law”, in particular was there a court order for his detention and was he brought before a judge to assess whether his detention was lawful and justified? In view of the applicant ’ s allegations, can the respondent State be held responsible for his abduction and forcible disappearance for an uninterrupted period of 149 days? Consequently, was he deprived of his liberty in breach of Article 5 of the Convention?

5. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary within the meaning of Article 8 § 2?

6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 3 and 5, as required by Article 13 of the Convention? In particular, can the applicant ’ s civil action for damages have any prospect of success if his criminal complaint has not yet produced any results?

[1] The applicant referred in the application, as the main source of evidence of the facts, to his declaration made on 6 April 2006 in the course of the proceedings before the U.S. District Court for the Eastern District of Virginia in the case El-Masri v. Tenet et al. (available at http://www.aclu.org/pdfs/safefree/elmasri_decl_exh.pdf ) and the 2006 Marty report (§§ 94-101, see note 8 below).

[2] The applicant provided an illegible copy of his passport. The information that such a stamp was affixed is taken from the materials submitted in support of the application.

[3] Upon his return to Germany , the applicant recognised, through photographs available on the Skopski Merak’s website, the hotel building, the room where he was held and one of the waiters who served him food .

[4] Rendition is defined as a “process of one State obtaining custody over a person suspected of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of such a person to custody in the first State’s territory, or a place subject to its jurisdiction, or to a third State” (see European Commission for Democracy Through Law (Venice Commission), “Opinion on the international legal obligations of Council of Europe Member States in respect of secret detention facilities and inter-state transport of prisoners”, no. 363/2005, 17 March 2006, par.30. Available at http://www.venice.coe.int/docs/2006/CDL-AD(2006)009-e.pdf .

[5] See supra note 2.

[6] See Central Intelligence Agency, “Memo to the Department of Justice Command Centre-Background Paper on CIA’s combined use of Interrogation techniques”, 30 December 2004. Available at http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc97.pdf .

[7] F light records obtained by the Marty Inquiry (see the subheading “Parliamentary Assembly of the Council of Europe - the Marty Inquiry” below) indicated that on 23 January 2004 a Boeing 737 business jet flew from the former Yugoslav Republic of Macedonia to Afghanistan . The jet was owned by a U.S.-based corporation, Premier Executive Transportation Services, Inc., and operated by another U.S.-based corporation. Aero Contractors Limited, registered at the time by the U.S. Federal Aviation Administration with tail number N313P. The records indicated that the plane took off from Palma de Mallorca , Spain on 23 January 2004, and landed at the Skopje airport at 20:51 that evening. The jet left Skopje more than four hours later, at 01:30 on 24 January 2004, flying to Baghdad and then on to Kabul .

[8] Doc.10957 available at http://assembly.coe.int/Doc u ments/WorkingDocs/doc06/edoc10957.pdf

[9] It was based on the meetings that took place between 27 and 29 April 2006.

[10] Council of Europe , "Report by the Secretary General under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts," (SG/Inf (2006) 5), 28 February 2006).

[11] Reply to the Letter of Secretary General of the Council of Europe Terry Davis of 21 November 2005, No. 35-01-035/2, 17 February 2006. Available at http://www.coe.int/T/E/Com/Files/Events/2006-cia/Yougoslav-Republic-of-Macedonia.pdf ;

http://www.coe.int/t/E/Com/Files/Events/2006-CIA/annexes2/FYROM.pdf

[12] The 2006 Marty report described this point as one from which one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systemic occurrence.

[13] A database of aircraft movements, compiled on the basis of information obtained from various sources was attached to the 2006 Marty report.

[14] In this respect, the applicant submitted the “List of significant earthquakes of the world in 2004”, prepared by the US Geological Survey (USGS) of 6 October 2005. According to this document, there was one earthquake on 5 April 2004 in the Hindu-Kush Region, Afghanistan .

[15] Doc.11302 rev. available at http://assembly.coe.int/Documents/WorkingDocs/Doc07/EDOC11302.pdf

[16] Decision available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//NONSGML+TA+P6-TA-2006-0012+0+DOC+WORD+V0//EN

[17] European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, adopted midway through the work of the Temporary Committee (2006/20 27(INI)),P6_TA(2006)0316,available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//EN

[18] European Parliament, Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200 (INI)), doc. A6-0020/2007 .

[19] U.N. Human Rights Committee, Concluding Observations on the Former Yugoslav Republic of Macedonia, 3 April 2008, U.N. Doc. ССРШС/МКХ)/С0/2. Available at: http://www2.ohchr.org/english/bodies/hrc/docs/CCPR.C.MKD.CO.2.doc .

[20] Council of Europe Commissioner for Human Rights, Thomas Hammarberg, "Report on visit to the former Yugoslav Republic of Macedonia ”, 25-29 February 2008, 11 September 2008, par. 76. Available at http://lib.ohchr.org/HRBodies/UPR/Documents/Session5/MK/COE_MKD_UPR_S5_2009_Follow-up ReportonMacedonia_2003-2005_CommDH_2008_21.pdf .

[21] Bundestag Committee of Inquiry, Findings of the First Investigative Committee of the Sixteenth Legislative Period (Drucksache 16/13400).

[22] http://dipbt.bundestag.de/dip21/btd/16/134/1613400.pdf (in German) .

[23] El -Masri v. George Tenet el al., 437 F. Supp. 2d 530, 534 (E.D.V A. 2006).

[24] El -Masri v. George Tenet el al., 437 F. Supp. 2d 530, 536-539 (E.D.V A. 2006).

[25] El-Masri v. United States et al. 479 F.3d 296, 301-302 (2006).

[26] El-Masri v. United States , 128 S, Ct. 373, 169 L. Ed. 2d 258 (2007).