Information Note on the Court’s case-law 218

May 2018

Abu Zubaydah v. Lithuania - 46454/11

Judgment 31.5.2018 [Section I]

Article 3

Inhuman treatment

Extradition

Inhuman treatment following applicants’ extraordinary rendition to CIA: violations

[This summary also covers the judgment in the case of Al Nashiri v. Romania , 33234/12, 31 May 2018]

Facts – The applicants were detained by the United States (US ) Central Intelligence Agency (CIA) at the start of the “war on terror” following the 11 September 2001 attacks. Following their transfer by means of “extraordinary rendition”, they were held in CIA secret detention facilities in various countries. As “Hig h-Value Detainees” (HVD), that is, terrorist suspects likely to be able to provide information about current terrorist threats against the United States, they were subjected to the “enhanced interrogation techniques”, which included the “waterboard techniq ue”, confinement in a box, sleep and food deprivation, exposure to cold temperature, wall-standing and other stress positions. Mr Al Nashiri was also subjected to “unauthorised” interrogation methods, such as mock executions and hanging upside down.

The c ircumstances surrounding the applicants’ extraordinary rendition have been the subject of various reports and investigations, including reports prepared by Dick Marty, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe (PACE), and the 2014 US Senate report on CIA torture.

In its judgments of 24 July 2014, the Court found several violations of the Convention in connection with the applicants’ incommunica do detention in Poland while in CIA custody (applications nos. 7511/13 and 28761/11 , Information Note 176 ).

In the present applications, the applicants complained that the respondent States had allowed the CIA to subject them to incommunicado detention and torture on their territory and to transport them subsequently to other CIA detention sites abroad.

Both applicants are currently being held at the US Naval Base in Guantanamo Bay. Mr Husayn, also known as Abu Zubaydah, has never been charged with any offence. Mr Al Nashiri was indicted to stand trial before a US military commission on capital charges.

Law

Establishment of the facts and jurisdiction – The Court found it established conclusively and beyond reasonable doubt that Lithuania and Romania had hosted on their territory a CIA Detention Site; that the applicants had been secretly detained there for more than a year and that the authorities of the respondent States knew of the nature and purposes of the CIA’s activities in their countries and had cooperated in the execution of the HVD Programme, while being aware that, by enabling the CIA to detain terrorist suspects on their territory, they wer e exposing the said suspects to a serious risk of treatment contrary to the Convention.

The matters complained of in the present cases fell within the “jurisdiction” of Lithuania (in respect of Mr Husayn) and Romania (in respect of Mr Al Nashiri) within th e meaning of Article 1 and were capable of engaging their responsibility under the Convention.

Article 3 ( substantive aspect ): The Court established beyond reasonable doubt that during their detention in Lithuania and Romania respectively, the applicants h ad been kept – as any other CIA detainee – under a regime including, as a matter of fixed, predictable routine, the blindfolding or hooding of detainees, which was designed to disorient them and keep them from learning of their location or the layout of th e detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement.

While the applicants had not been subjected to interrogations with the use of the harshest methods, they had been subjected to an extremely harsh detention regime in Lithu ania and Romania, including a virtually complete sensory isolation from the outside world, and suffered from permanent emotional and psychological distress and anxiety caused by the past experience of most brutal torture in the CIA’s hands and constant fea r of their future fate. Consequently, having regard to the applicants’ regime of detention and its cumulative effects on them, the treatment complained of was to be characterised as intense physical and mental suffering falling within the notion of “inhuma n treatment”.

Accordingly, Lithuania and Romania, on account of their “acquiescence and connivance” in the HVD Programme had to be regarded as responsible for the violation of the applicants’ rights under Article 3 committed on their territory.

By enabling the CIA to transfer the applicants out of Lithuania and Romania respectively to other detention facilities, the domestic authorities had exposed them to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 .

Conclusion : violations (unanimously).

The Court also found, unanimously, violations:

(a) by Romania:

– of Articles 2 and 3 of the Convention in conjunction with Article 1 of Protocol No. 6; and

– of Article 6 § 1 on account of Mr Al Nashiri’s transf er from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice and be subjected to the death penalty following his trial before a military commission in the USA;

(b) by both respondent States:

– of Article 3 in its procedural aspect on account of the failure to conduct an effective and thorough investigation into the applicants’ allegations of ill-treatment when in CIA custody;

– of Article 5 in respect of the applicants’ secret detention on the respondent Stat es’ territory and their subsequent transfer to another CIA detention site abroad;

– of Article 8 as the interference with the applicants’ right to respect for their private and family life had not been in accordance with the law and lacked any justificati on, given the imposition of fundamentally unlawful, undisclosed detention; and

– of Article 13 on account of the lack of an effective remedy to complain about violations of the applicants’ rights.

Article 46

(a) Investigation – Both respondent States wer e required to reactivate and bring to a close as soon as possible the criminal investigations into the circumstances and conditions under which the applicants had been brought into, removed from and treated on their territory, with a view to identifying an d, where appropriate, punishing those responsible.

(b) Diplomatic action – Lithuania was required to make further representations to the US authorities to remove or, at the very least, seek to limit the effects of the violations of Mr Husayn’s rights. Th e outcome of the trial against Mr Al Nashiri still being uncertain, Romania should seek assurances from the US authorities that he would not suffer the death penalty.

Article 41: EUR 100,000 to each applicant in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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