ECHR judgments of May 31, 2018 in the case of Abu Zubaydah v. Lithuania, Al Nashiri v. Romania (applications No. 46454/11 and 33234/12).
In 2011 and 2012, complainants were assisted in preparing applications. Subsequently, the applications were communicated to Lithuania and Romania, respectively.
In the case, the applicants were successfully considered for inhuman treatment during their detention, torture against them, their secret detention and isolation from the outside world. In the case of violations of the requirements of articles 2, 3, 5, clause 1 of article 6, articles 8, 13, 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants were detained by employees of the Central Intelligence Agency (hereinafter - the CIA) of the United States of America as part of the "fight against terrorism", which began after the attacks of September 11, 2001. After the applicants were transferred in accordance with the "emergency extradition" procedure, they were kept in secret CIA offices in various countries . As “prisoners of special importance” (HVD), that is, terrorists suspected of “reporting information about possible terrorist threats in the United States of America”, the applicants were subjected to “enhanced interrogation techniques”, which included “imitating drowning” ", the content in the box, deprivation of sleep and food, content at low temperatures, standing against the wall and content in other stressful situations. The complainant Al Nashiri was also subjected to “unauthorized” interrogation techniques, such as imitation of execution and hanging upside down.
The circumstances of the “extraordinary extradition” of the complainants have been the subject of numerous reports and investigations, including the report of journalist Dick Marty, prepared by him in connection with the investigation by the Parliamentary Assembly of the Council of Europe, and the 2014 report of the United States Senate on torture.
In its judgments of July 24, 2014, the European Court found a number of violations of the Convention in connection with the applicants' detention without the right to communicate with the outside world while in Poland under CIA jurisdiction (complaints No. 7511/13 and 28761/11). This refers to the European Court of Hussein (Abu Zubeida) v. Poland case (Husayn (Abu Zubaydah) v. Poland) of July 24, 2014, complaint No. 7511/13, and the European Court of Justice in the case of Al Nashiri Of Poland "(Al Nashiri v. Poland) of July 24, 2014, complaint No. 28761/11.
In these complaints, the complainants appealed that the authorities of the respondent states allowed the CIA officers to subject the applicants in their territories to detention without the right to communicate with the outside world, as well as to torture and subsequently allow the applicants to be transported to other institutions under CIA jurisdiction in other countries.
Both applicants are currently detained at the United States Naval Base in Guantanamo. The applicant, Hussein, also known as Abu Zubeid, was never charged. Al-Nashiri was indicted and brought before a United States military court on charges of crimes punishable by death.
QUESTIONS OF LAW
Establishment of facts and questions of jurisdiction. The European Court finally established, and without any reasonable doubt, that the authorities of Lithuania and Romania allowed the establishment of detention facilities under the jurisdiction of the United States CIA in their territories, and that the applicants were secretly kept in these institutions for more than one year, and that the authorities of the respondent countries were aware of the nature and objectives of the CIA’s actions in their countries and collaborated with it in the implementation of the program of “prisoners of special importance”, realizing at the same time that, allowing the CIA to contain ü in their territories of persons suspected of terrorism, they exposed the suspects to serious risk of treatment contrary to the requirements of the Convention.
The issues complained in the present case related to the “jurisdiction” of the Lithuanian authorities (in relation to the applicant Abu Zubeid) and Romania (in relation to the applicant Al Nashiri) within the meaning of Article 1 of the Convention and could entail the responsibility of the respondent states of the Convention.
Regarding compliance with Article 5 of the Convention (substantive aspect). The European Court found beyond reasonable doubt that, while the applicants were detained in Lithuania and Romania, they were respectively detained, like other prisoners under CIA jurisdiction, in a regime that included (as a predictable daily routine) tying up prisoners' eyes or donning bag them in the head to disorient them and prevent them from knowing the location of the institution or its scheme, shaving their hair upon arrival at the institution, keeping them in solitary cells without the possibility of contact with external they world constant and deliberate use in chambers of different noise levels of high intensity, continuous lighting in the cells of the same intensity as in the ordinary office, the use of the leg shackles in all cases manipulation of prisoners and move them.
Although the applicants were not interrogated using the most brutal methods, they were subjected to extremely strict detention in Lithuania and Romania, including almost complete sensory isolation from the outside world, and suffered from constant emotional and psychological stress and experiences caused by past cruel torture side of the CIA, as well as constantly feared for their future. Consequently, taking into account the regime of the applicants' detention and its cumulative effect on the applicants, the complained complaint should have been characterized as severe physical and psychological suffering, falling within the definition of “inhuman treatment”. Therefore, the authorities of Lithuania and Romania, in connection with their “acceptance” of the program of “special prisoners” and “connivance” of this program, should be held responsible for the violation of the applicants' rights guaranteed in Article 3 of the Convention committed in the territory of these states.
By allowing the CIA to transfer claimants from Lithuania and Romania respectively to other places of detention, the authorities of the respondent states exposed the applicants to a perceived serious risk of further ill-treatment and conditions of detention in violation of Article 3 of the Convention.
The case was a violation of Article 3 of the Convention (adopted unanimously).
The European Court also unanimously found violations:
(a) by the Romanian authorities:
- Articles 2 and 3 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention;
- Article 6 § 1 of the Convention in connection with the transfer of the complainant Al Nashiri from the territory of Romania, despite the real and foreseeable risk that the applicant could face a direct denial of justice and be executed after his case was examined by a military commission in the United States of America;
(b) by the authorities of Lithuania and Romania:
- the procedural component of Article 3 of the Convention in connection with the inability to conduct an effective and thorough investigation of the applicants' complaints of ill-treatment during their detention in CIA institutions;
- Article 5 of the Convention due to the secret detention of the applicants in the territory of the respondent states and their subsequent transfer to other CIA institutions in third states;
- Article 8 of the Convention, since the interference with the applicants' right to respect for their private and family life did not comply with the law and was not justified, given the use of unlawful, secret detention;
- Article 13 of the Convention in connection with the absence of an effective legal remedy to appeal against the violation of the applicants' rights.
Regarding compliance with Article 46 of the Convention. (a) Investigation. The authorities of both respondent states are obliged to resume and investigate on the merits as soon as possible the criminal cases concerning complaints about the circumstances and conditions under which the applicants were taken to the territories of the respondent states and taken out of them, as well as in which the applicants were located in the said territories and, if appropriate, punish the guilty.
(b) Diplomatic actions. The Lithuanian authorities are obliged to send further requests to the United States authorities to eliminate or at least limit the consequences of violations of the rights of the applicant Abu Zubeid. Since the outcome of the trial of Al Nashiri’s case is still unclear, the Romanian authorities should request from the authorities of the United States of America to obtain assurances that the applicant will not be executed.
In application of Article 41 of the Convention. The Court awarded each of the applicants EUR 100,000 in respect of non-pecuniary damage.