Lexploria

Information Note on the Court’s case-law 218

May 2018

Al Nashiri v. Romania - 33234/12

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 Abu Zubaydah v. Lithuania , 46454/11, 31 May 2018]

Facts – The applicants were detained by the United States (US) Centra l 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 “High-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 technique”, con finement 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 circumsta nces 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 Eu rope (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’ incommunicado 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 tortu re 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 Abu Zubaydah has never been charged with any offence. Mr Al-Nashiri was indic ted 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 th e 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 were 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 and Romania within the 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 had 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 the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detaine e management and movement.

While the applicants had not been subjected to interrogations with the use of the harshest methods, their experience in CIA custody prior to their detention in the respondent States was an important factor to be taken into accoun t in the assessment of the severity of the treatment to which they had subsequently been subjected.

The applicants had been subjected to an extremely harsh detention regime, including a virtually complete sensory isolation from the outside world, and suffe red from permanent emotional and psychological distress and anxiety caused by the past experience of most brutal torture in the CIA’s hands and constant fear of their future fate. Consequently, having regard to the applicants’ regime of detention and its c umulative effects on them, the treatment complained of was to be characterised as intense physical and mental suffering falling within the notion of “inhuman 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 fac ilities, 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:

– by Romania:

i) of Articles 2 and 3 in conjunction with Article 1 of Protocol No. 6, and

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

– by both Respondent States:

i) of Article 3 (procedural aspect) on account of the failure to conduct an effective and thorough investigation into the applicants’ allega tions of ill-treatment when in CIA custody;

ii) of Article 5 in respect of the applicants’ secret detention on the respondent States’ territory and their subsequent transfer to another CIA detention site abroad;

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

iv) of Article 13 on account of the lack of an ef fective remedy to complain about violations of the applicants’ rights.

Article 46: Investigation – Both respondent States were 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 and, where appropriate, punishing those responsible.

Diplomatic action – Lithuania was required to make further representations to t he US authorities to remove or, at the very least, seek to limit the effects of the violations of Mr Abu Zubaydah’s rights.

The outcome of the trial against Mr Al Nashiri still being uncertain, Romania should seek assurances from the US authorities that h e would not suffer the death penalty.

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

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