Interim Resolution CM/ResDH(2022)353

Execution of the judgments of the European Court of Human Rights

Al Nashiri group against Poland

(Adopted by the Committee of Ministers on 8 December 2022 at the 1451 st meeting of the Ministers’ Deputies)

Application No.

Case

Judgment of

Final on

28761/11

AL NASHIRI

16/02/2015

7511/13

HUSAYN (ABU ZUBAYDAH)

24/07/2014

16/02/2015

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases in which the Court established Poland’s responsibility under the Convention on account of the authorities’ knowledge of and involvement in the implementation of the CIA “High-Value Detainee Programme” and found serious violations of several Convention rights by Poland in the context of “extraordinary rendition” operations which enabled the United States authorities to bring the applicants illegally under United States jurisdiction;

Underlining that Poland, as every member State, has the obligation, under Article 46, paragraph 1, of the Convention, to abide by the final judgments of the Court to which it is party fully, effectively and promptly;

Recalling that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required, of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum and of general measures capable of preventing similar violations;

As regards individual measures

Stressing that the consequences of the violations of the Convention for the applicants have not been remedied, particularly as Mr Al Nashiri remains at risk of the death penalty in the proceedings before a United States military commission and Mr Abu Zubaydah continues to be detained indefinitely and without charge since 2002 nor any safeguards against arbitrary detention;

Reaffirming its unequivocal opposition to the death penalty;

Recalling, in respect of the other risk identified by the Court as regards Mr Al Nashiri, of a flagrant denial of justice due to the possible use of evidence obtained through torture or other forms of ill-treatment in the applicant’s trial, the United States Government’s statement that it would not seek admission, at any stage of that trial, of any of Mr Al Nashiri’s statements made while he was in the CIA custody; noting further that the same position appears to extend to the use of such evidence obtained from individuals other than the defendants in military commission proceedings;

Recalling that that the domestic investigation concerns allegations of torture on Polish territory, notably by CIA agents, and in addition the question of the legality and legitimacy of both decisions taken by Polish State officials and of activities in which the national security and intelligence services were engaged in the implementation of the CIA HVD Programme on Poland’s territory;

As regards general measures

Noting with deep regret that information provided by the authorities so far as regards the measures required to strengthen democratic oversight over the intelligence services has not clarified how the establishment of the Committee for National Security and Defence Affairs has addressed the deficiencies diagnosed in the existing system following the audit initiated by the Minister-Coordinator of Special Services;

Noting with deep regret the lack of any information attesting developments in the adoption of the other measures necessary to guarantee non-repetition of the violations found;

EXHORTED the authorities to rapidly resume their diplomatic action to seek to remove the risks faced by the applicants and exhaust every possible avenue to make it effective, including through engaging with the United States at a higher level, and to provide for a clear and consistent strategy in this respect;

URGED the authorities to envisage, in addition to their diplomatic efforts, other avenues which would enable them to seek the relief refused so far by the United States administration, such to intervening as amicus curiae in any relevant proceedings pending in the United States;

REQUESTED the authorities also to enquire with their United States counterparts on the exact scope and consequences of recent statements made by the United States Government as regards the elimination of the other risk identified by the Court, of a flagrant denial of justice, due to the possibility to use evidence obtained through torture or other forms of ill-treatment in the Al Nashiri’s trial;

STRONGLY URGED anew the authorities to reconsider their position and submit, on a confidential basis, if need be, the decision on partial discontinuation of the investigation or indicate in sufficient detail the justifying reasons and explain, on this basis, how the investigation carried out so far has complied with their Article 46 obligation;

CALLED on them to adopt a proactive approach to inform the public about the course of this investigation and its results;

URGED the authorities to provide clarifications on how the establishment of the Committee for National Security and Defence Affairs increases scrutiny over the high-level decision making as regards actions of the intelligence services and more generally, how this measure has addressed the deficiencies diagnosed in the existing system following the audit initiated by the Minister-Coordinator of Special Services;

EXHORTED the authorities to provide information attesting developments in the adoption of other measures necessary to guarantee non-repetition of the violations found, notably through ensuring unhindered communication with the European Court; delivering an unequivocal message at high level to the intelligence and security services as to the absolute unacceptability of and zero tolerance towards arbitrary detention, torture and secret rendition operations; and acknowledging Poland’s role in and responsibility for the human rights violations that occurred in these cases;

DECIDED to resume consideration of this group of cases at its 1475 th meeting (September 2023) (DH).