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The European Court of Human Rights and Counter-Terrorism Initiatives

  • Jessie BlackbournEmail author
Living reference work entry
Part of the International Human Rights book series (IHR)

Abstract

This chapter draws on the European Court of Human Rights’ recent case law on the practice of extraordinary rendition to evaluate whether its principles, judgments, and initiatives have limited abuses in counter-terrorism in Europe. The chapter reveals that the Court has found extraordinary rendition to constitute a practice that violates a number of rights and freedoms protected within the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”), including the prohibition of torture or other inhuman and degrading treatment or punishment in article 3, the right to liberty and security in article 5, the right to a fair trial in article 6, the right to respect for private and family life in article 8, and the right to an effective remedy in article 13. However, while the Court has laid down a number of principles regarding these rights, in particular relating to when the state’s responsibility for the actions of private individuals both on its territory and outside its jurisdiction is engaged, this chapter concludes that it has not necessarily been able to limit ongoing abuses against those subject to the extraordinary rendition program.

Keywords

Counter-terrorism European Court of Human Rights European Convention on Human Rights Extraordinary rendition Liberty Right to truth Torture 

Introduction

The European Court of Human Rights was established in 1959 to hear and determine complaints against member states of the Council of Europe concerning violations of the civil and political rights enshrined within the European Convention on Human Rights. In the past 60 years, the Court has been faced with a number of complaints relating to terrorism and counter-terrorism (Salinas de Frías 2012). In fact, its very first case (Lawless v Ireland 1961) considered whether special powers of arrest and detention enacted in the Offences Against the State (Amendment) Act 1940 by the Republic of Ireland amounted to a breach of the European Convention. The case concerned Gerard Lawless, a former member of the Irish Republican Army, who was arrested and detained without charge or trial for 5 months on a warrant issued by the executive. Lawless argued that his detention without trial amounted to a violation of his right to liberty and security in article 5 of the European Convention, to a fair trial in article 6, and not to be subject to retroactive punishment under article 7. The Court dismissed his claim under articles 6 and 7 as irrelevant, but held that his internment was contrary to articles 5(1)(C) and 5(3) of the European Convention on the grounds that his detention had not been “effected for the purpose of bringing him before the competent legal authority” (Lawless v Ireland 1961, [15]). However, the Court held that this did not constitute a violation of the right to liberty and security because the Republic of Ireland had successfully derogated from article 5 under article 15 of the European Convention (Lawless v Ireland 1961; Doolan 2018; ‘The Lawless Case’ 1962).

Since the case of Lawless v Ireland, the Court has dealt with numerous cases alleging that the counter-terrorism laws, policies, and practices of member states have violated a variety of rights under the European Convention (European Court of Human Rights Press Unit 2018; Salinas de Frías 2012). In recent years however, the Court has been faced with a growing number of cases that allege violations of multiple rights protected by the European Convention. These cases concern allegations of unlawful detention and torture under the extraordinary rendition program used by the US Central Intelligence Agency (CIA) during the “war on terror” (Singh and Berry 2013; United States Senate 2014). The cases raise interesting questions as to when member states will be held responsible for the activities of private individuals, both within and outside their territory, and offer an interesting lens through which to view how successful the European Court of Human Rights has been at limiting abuses in counter-terrorism in Europe.

The chapter starts by outlining the various issues raised in, and the principles delineated from, the first of the rendition cases to be reported, that of El-Masri v The Former Yugoslav Republic of Macedonia (2013). It then evaluates how the principles derived from this first case have been built upon and developed in the five rendition cases that have subsequently been reported: Al Nashiri v Poland (2015), Husayn (Abu Zubaydah) v Poland (2015), Nasr and Ghali v Italy (2016), Abu Zubaydah v Lithuania (2018), and Al Nashiri v Romania (2018). The case of Nasr and Ghali v Italy (2016) ECHR 210 involved two applicants: Mr. Nasr, who was subjected to detention and ill-treatment under the US extraordinary rendition program, and his wife Mrs. Ghali who was not herself subjected to extraordinary rendition. Mrs. Ghali successfully claimed that her rights under articles 3, 8, and 13 had been violated, due to the conditions of her husband’s disappearance. This chapter however focuses on Mr. Nasr, as the subject of the extraordinary rendition program. The chapter concludes by outlining what these cases reveal about the European Court’s capacity to limit abuses in counter-terrorism.

The First Rendition Case: El-Masri v the Former Yugoslav Republic of Macedonia

On 13 December 2012, the European Court of Human Rights handed down judgment in the landmark case of El-Masri v The Former Yugoslav Republic of Macedonia (2013). El-Masri, a German citizen, was stopped by Macedonian border authorities at the Serbian-Macedonian border on 31 December 2003 while traveling to Skopje on holiday. After seven hours of questioning at the border, El-Masri was driven to a hotel in Skopje by armed men, where he was detained incommunicado and interrogated until 23 January. He was then taken by the Macedonian authorities to Skopje airport, where he was violently transferred into the custody of a special CIA rendition team and flown via Baghdad, Iraq, to a secret CIA-run detention facility known as “the Salt Pit” in Kabul, Afghanistan. El-Masri was detained in Kabul until 28 May 2004, when he was flown first to Albania and then onward to Germany (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [17]–[33]).

In his case before the European Court of Human Rights, El-Masri argued that not only had the former Yugoslav Republic of Macedonia violated his rights under articles 3, 5, 8, 10, and 13 of the European Convention but that it was also responsible for his detention and ill-treatment by the CIA after he had been transferred into their custody.

Prohibition of Torture

The Court first examined El-Masri’s allegations that he had been subject to treatment in breach of article 3 of the European Convention. At the hotel in Skopje, where El-Masri was detained by Macedonian authorities, the applicant was interrogated in a foreign language, threatened with a gun and informed that he would be shot if he left the hotel room, and refused access to anyone other than his interrogators. The Court was not concerned that this treatment did not involve any physical harm to his person, noting that in its earlier case law, it had held that article 3 also pertains to “mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [202]). It thus held that the emotional and psychological distress that El-Masri experienced during his interrogators’ attempts to try to extract a confession from him “amounted on various counts to inhuman and degrading treatment in breach of Article 3 of the Convention” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [204]). The Court also held that the treatment that El-Masri was subjected to during his transfer into the CIA’s custody at Skopje airport was severe enough to constitute torture within the meaning of article 3 (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [211]). El-Masri was taken to Skopje airport on 23 January 2004 handcuffed and blindfolded:

Placed in a room, he was beaten severely by several disguised men dressed in black. He was stripped and sodomised with an object. He was placed in a nappy and dressed in a dark blue short-sleeved tracksuit. Shackled and hooded, and subjected to total sensory deprivation, the applicant was forcibly marched to a CIA aircraft … When on the plane, he was thrown to the floor, chained down and forcibly tranquilised. While in that position, the applicant was flown to Kabul (Afghanistan) via Baghdad. (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [205])

The former Yugoslav Republic of Macedonia was deemed “directly responsible” for this violation, not only because its agents were present during the treatment of El-Masri at the airport but because they directly facilitated it by transferring the applicant into CIA custody (at one point even forming a security cordon around the plane) and then failed to take any measures to prevent it from occurring (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [211]). The Court reiterated its position that the requirement on states in article 1 of the European Convention on Human Rights to “secure to everyone within their jurisdiction the rights and freedoms” therein is a positive obligation (Mowbray 2004). Taken in conjunction with article 3, this positive obligation requires states “to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [198]). By failing to prevent El-Masri’s torture, the former Yugoslav Republic of Macedonia was thus responsible for the violation of article 3 that ensued.
The question the Court then turned its attention to was whether responsibility could also be imputed to the former Yugoslav Republic of Macedonia for the CIA’s treatment of El-Masri in Afghanistan, outside its territory. To address this, the Court referred to its case law on extradition. In Soering v The United Kingdom (1989) the Court held that:

the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country ([91]).

In determining whether there is a risk of ill-treatment, the Court “must examine the foreseeable consequences of sending the applicant to the receiving country” based on “those facts which were known or ought to have been known to the Contracting State at the time of the removal” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [213]–[214]). The evidence before the Court revealed that the Macedonian authorities allowed a known rendition plane to land at Skopje airport and granted it permission to fly to Kabul via Baghdad. Noting that there were already reports about US interrogation methods in the public domain prior to El-Masri’s transfer into CIA custody and that the Macedonian authorities did not seek any assurances from the USA that El-Masri would not be subjected to interrogation methods that might constitute torture, the Court held that “the Macedonian authorities knew or ought to have known, at the relevant time, that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention” when they transferred him into CIA custody (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [218]). The Court thus extended its case law on extradition to situations of informal “transference” by one state to another.
The Court was not just concerned with the substantive aspect of El-Masri’s complaint under article 3, it also examined whether the former Yugoslav Republic of Macedonia had violated the procedural aspect of the right. The procedural aspect of the prohibition on torture and inhuman or degrading treatment of punishment emerges from the implied positive obligation on states under article 1 of the Convention to investigate alleged violations of substantive rights (Mowbray 2004). The Court set out the importance of the procedural aspect of article 3 in El-Masri v The Former Yugoslav Republic of Macedonia (2013):

where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the state, that provision, read in conjunction with the state’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation ([182]).

In the absence of an effective official investigation, the Court noted, “the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the state to abuse the rights of those within their control with virtual impunity” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [182]). The Court outlined the necessary features of an effective investigation. It should be “capable of leading to the identification and punishment of those responsible” and must be both “prompt and thorough,” meaning that “the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions.” The authorities must also take “all reasonable steps available to them to secure the evidence concerning the incident,” and the investigation should be independent from the executive (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [182]–[184]). Referring to El-Masri’s case, the Court noted that the applicant had filed a criminal complaint in October 2008 alleging that he was subject to ill-treatment by state agents and rendition by the CIA. However, the sole line of investigation followed by the Skopje Public Prosecutor was to request information from the Ministry of the Interior. The Ministry of the Interior provided a report that simply stated the government’s version of the events that occurred after 31 December 2003 as follows:

the applicant, after having arrived at the Tabanovce border crossing on 31 December 2003, had been held between 4.30 p.m. and 9.30 p.m. in the official border premises and interviewed by the Macedonian police in connection with the alleged possession of a forged passport. After he had been released, he had stayed in the hotel, occupying room number 11. He had paid the hotel bill and had left the respondent State, as a pedestrian, at 6.20 p.m. on 23 January 2004 at the Blace border crossing. (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [65])

On the basis of the information provided by the Ministry of the Interior, the Public Prosecutor accepted the government’s version of events and rejected the applicant’s complaint “for lack of evidence” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [187]). The Court held that by relying “exclusively on the information and explanations given by the Ministry, whose agents were, broadly speaking, suspected of having been involved in the applicant’s treatment,” and by concluding that no other lines of investigation were necessary, the investigation lacked the crucial element of independence required by, and thus violating, the procedural aspect of article 3 of the Convention (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [189]).

Right to Liberty and Security

In addition to claiming a violation of his article 3 rights, El-Masri also complained that his right to liberty and security under article 5 had been violated. He asked the Court to hold the former Yugoslav Republic of Macedonia responsible not only for his detention at the Skopje hotel, when he was in the custody of Macedonian security forces, but for the entire period of his detention, including that outside the territory of the respondent state (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [225]). The Court had no difficulty finding that El-Masri’s detention in the Skopje hotel breached article 5: there was no judicial authorization for his detention, El-Masri had no access to legal counsel, he was not allowed to contact either his family or a representative of the German Embassy, he was deprived of any opportunity to be brought before a court to challenge the lawfulness of his detention, and he was held in a place – a hotel room – that was outside the normal legal framework for detention. His unacknowledged and incommunicado detention in an extraordinary location thus constituted a “particularly grave violation” of article 5 for the Court (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [236]–[237]). A more challenging question was whether the respondent state could also be held responsible for the actions of private individuals – the CIA rendition team – outside its territory.

Referring to the principles established in its earlier case law (Chahal v United Kingdom 1996; Quinn v France 1995), the Court noted that any deprivation of liberty must “be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [230]). In reference to the case of Kurt v Turkey (1999), the Court noted:

The unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance. (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [233])

The Court further reiterated that a violation of article 5 is possible where individuals are removed to states where there is a “real risk of flagrant breach of that article” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [239]). States are thus under a positive obligation to protect against the unlawful interference with article 5, if necessary by preventing the removal of an individual within their jurisdiction. The Court held that the former Yugoslav Republic of Macedonia ought to have known that transferring the applicant into CIA custody posed a risk that he would be unlawfully detained in violation of his article 5 rights. The respondent state therefore facilitated El-Masri’s detention in Afghanistan by transferring him into the custody of the CIA and so was responsible for the violation of his article 5 rights “during the entire period of his captivity” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [239]–[241]). Noting that it had already held that the former Yugoslav Republic of Macedonia had not conducted an effective investigation into the allegations of ill-treatment under article 3, the Court also held that the respondent state had violated the procedural limb of article 5 (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [241]–[243]).

Right to Respect for Private and Family Life

While the Court focused much of its attention on El-Masri’s claims under articles 3 and 5 of the Convention, it also considered his allegation that his right to respect for private and family life had been breached. In doing so, the Court did not dwell for too long on the matter, according it just three short paragraphs of an otherwise lengthy judgment. Article 8 of the European Convention on Human Rights protects against interference by a public authority with the exercise of the right to a private and family life “except such as is in accordance with the law and is necessary in a democratic society,” for example, in the interests of national security. El-Masri’s claim – which the respondent government rejected – was that his separation from his family during his detention “had had a severe effect on his physical and psychological integrity” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [245]–[246]). The Court noted that the notion of a private life was broad and “not susceptible to exhaustive definition” and that it might cover the “moral and physical integrity of the person” in situations of a deprivation of liberty (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [248]). Highlighting that “an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities,” and relying on the evidence already established in the case regarding El-Masri’s unlawful detention, the Court held that the “interference with the applicant’s right to respect for his private and family life was not ‘in accordance with the law’” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [248]). Having held that there were violations of articles 3, 5, and 8 of the European Convention, the Court then turned its attention to the question of whether an effective remedy had been available to El-Masri in respect of these rights.

Right to an Effective Remedy

Article 13 of the European Convention provides that “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity” (Council of Europe 1950, 13). An effective remedy for the purposes of article 13 is not simply analogous to the positive obligation on states to conduct an effective investigation into alleged violations of articles 3 and 5, though this forms part of it. The Court has clarified that “the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [255]).

El-Masri argued that there had been no effective remedy for the violation of his article 3, 5, and 8 rights for two reasons: first, the Macedonian authorities had not conducted an effective investigation into his allegations of ill-treatment and second, there had been “no domestic remedy to challenge the lawfulness of his detention in the former Yugoslav Republic of Macedonia and his transfer into CIA custody” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [252]). The Court noted that in fact El-Masri’s “complaints were never the subject of any serious investigation, being discounted in favour of a hastily reached explanation that he had never been subjected to any of the actions complained of” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [258]). The respondent state conceded that there had been no domestic remedy available to the applicant in respect of his complaints under articles 3 and 5 and further “admitted that in the absence of any conclusions of the criminal investigation, the civil avenue of redress, as such, could not be regarded as effective in relation to the applicant’s complaint under Article 8 of the Convention” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [253]). Considering the respondent state’s admission in this regard, the Court had no trouble finding that “the ineffectiveness of the criminal investigation undermined the effectiveness of any other remedy, including a civil action for damages” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [261]). It thus held the former Yugoslav Republic of Macedonia to be in breach of its obligation under article 13 of the Convention in conjunction with articles 3, 5, and 8.

A “Right to the Truth”?

The final argument that El-Masri put before the Court was that he had been denied a “right to the truth” in contravention of article 10 of the European Convention. Article 10 protects the right to freedom of expression (Council of Europe 1950, 12). El-Masri claimed that the freedom to “receive … information and ideas without interference by public authority” contained within article 10 constituted a right to be informed of the truth about his ill-treatment (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [263]). The Court rejected this complaint, finding it manifestly ill-founded on the grounds that it overlapped with the merits of his complaints under the procedural limb of articles 3 and 5, which the Court had already upheld (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [264]). There was thus no independent right to the truth in article 10. The Court did, however, hold that the procedural limb of article 3 included a right to be informed of the truth, which had not been fulfilled by the former Yugoslav Republic of Macedonia. It noted that: “The inadequate investigation in the present case deprived the applicant of being informed of what had happened, including getting an accurate account of the suffering he had allegedly endured and the role of those responsible for his alleged torture” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [192]). The Court was not simply concerned with the impact of the inadequacy of the investigation on the applicant’s right to be informed of the truth under the procedural limb of article 3. It also claimed that it had a wider effect, “not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had a right to know what happened” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [191]).

This aspect of the Court’s decision was not unanimous. Four judges thought that the Court’s decision did not go far enough and that it should instead have situated a right to the truth under article 13 of the Convention, giving it the status of a remedy, rather than locating it implicitly in the procedural aspect of article 3. In their joint concurring opinion, Judges Tulkens, Speilmann, Sicilianos, and Keller stated that in light of the seriousness of the violations of articles 3, 5, 8, and 13 in this case, “the Court should have acknowledged that in the absence of any effective remedies – as conceded by the Government – the applicant was denied the ‘right to the truth’; that is, the right to an accurate account of the suffering endured and the role of those responsible for that ordeal” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [OI-1]). They did, however, agree that because of the “scale and seriousness of the human-rights violations” in this case, the right to the truth was important not only for the applicant but also for the general public (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [OI-4]). Two judges, however, felt that the European Court had gone too far in its consideration of the right to the truth under the procedural limb of article 3. Judges Casadevall and López Guerra rejected the suggestion that the right to the truth extended to the general public. Noting that the right to an effective investigation into alleged violations of article 3 is important to determining the truth of a matter “irrespective of the relevance or importance of the particular case for the general public” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [OII-2]) and that it “applies equally in cases which have attracted wide public coverage and in other cases that have not been subject to the same degree of public attention,” they argued that the right to the truth is a right to which only the victim, and not the wider public is entitled (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [OII-3]).

In this first rendition case then, the Court held that there was no “right to the truth” in article 10 of the European Convention (Fabbrini 2014, 100–102) but found that the respondent state had violated the procedural and substantive aspect of the applicant’s article 3 and 5 rights, as well as his article 8 and article 13 rights. The Court’s reasoning in the case of El-Masri v The Former Yugoslav Republic of Macedonia (2013) provides the foundation for all subsequent complaints concerning extraordinary rendition.

Principles from the Case of El-Masri v the Former Yugoslav Republic of Macedonia

A number of principles can be derived from the Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013). The most notable of these delineate when the responsibility of the respondent state will be engaged for the actions of private individuals both within and outside its territory.

The Court held that the former Yugoslav Republic of Macedonia was “responsible under the Convention for acts performed by foreign officials on its territory” because of its “acquiescence or connivance” in the ill-treatment of the applicant (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [206]). This was because the Macedonian security forces directly participated in the applicant’s transfer to the CIA and were also present during his torture by the CIA at Skopje airport. However, the Court went further and highlighted that the positive obligation to secure to everyone within its jurisdiction the rights and freedoms in the European Convention meant that the state’s responsibility would not only be engaged where it actively participated in some respect with the ill-treatment but might also “be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known” (El-Masri v The Former Yugoslav Republic of Macedonia 2013, [198] emphasis added). Thus, the Court in El-Masri v The Former Yugoslav Republic of Macedonia (2013) established the principle that states may be held responsible for the ill-treatment of persons conducted by private individuals on their territory about which they ought to have known, even when they have not participated in that treatment.

In terms of when the state’s responsibility for detention and ill-treatment conducted by private individuals outside its territory will be engaged, the Court simply extended its settled case law in the area of extradition (which prohibits removal where there is a real risk of being exposed to treatment contrary to article 3 or detention in flagrant breach of article 5) to situations in which a member state unlawfully transfers an individual to the authorities of another state. The state’s responsibility for the actions of private individuals outside its territory will thus be engaged if it unlawfully transfers an individual to a state in which there is a real risk of exposure to treatment contrary to article 3 or unlawful detention in breach of article 5. If the state’s responsibility is so engaged, then the positive obligation under article 1 ensures that the member state is responsible for the entire period of the individual’s detention or ill-treatment.

In addition to highlighting when the state’s responsibility will be engaged for the actions of private individuals within and outside its territory, the Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) also set out principles relating to articles 8, 10, and 13. These were followed in each of the subsequent cases, so will not be explored further in the next section of this chapter.

In respect of article 8, the Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) foreshadowed that any proven act of extraordinary rendition would likely constitute a violation of the right to respect for private and family life. This is because article 8 is engaged in situations of a deprivation of liberty where the “moral and physical integrity of the person” is at stake. In each of the five subsequent rendition cases, the applicants argued that their unlawful detention and ill-treatment also constituted a breach of their right to a family and private life. In each case, the Court referred to the precedent it set out in El-Masri v The Former Yugoslav Republic of Macedonia (2013) and, using the same reasoning (and often the exact same language), held that the respondent states had violated the article 8 rights of the applicants (Al Nashiri v Poland 2015, [538]–[540]; Husayn (Abu Zubaydah) v Poland 2015, [532]–[534]; Nasr and Ghali v Italy 2016, [308]–[310]; Abu Zubaydah v Lithuania 2018, [664]–[666]; Al Nashiri v Romania 2018, [697]–[699]).

With regards to article 13, the Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) highlighted that where the respondent state had not conducted an effective investigation into plausible allegations of ill-treatment or unlawful detention, thus violating the procedural limb of articles 3 and 5, then the applicant will also not have had access to an effective remedy in satisfaction of article 13. Again, in each of the subsequent rendition cases, the Court referred back to the precedent in its judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) and held that the respondent states had violated article 13 (Al Nashiri v Poland 2015, [546]–[551]; Husayn (Abu Zubaydah) v Poland 2015, [540]–[545]; Nasr and Ghali v Italy 2016, [331]–[337]; Abu Zubaydah v Lithuania 2018, [672]–[677]; Al Nashiri v Romania 2018, [705]–[710]).

The final principle established by the Court in El-Masri v The Former Yugoslav Republic of Macedonia (2013) was that there is no independent right to the truth under article 10 of the Convention but that there is a positive obligation on states to carry out an effective investigation capable of leading to the establishment of the truth under articles 3 and 5. Because of the scale and serious nature of the allegations of human rights violations of the extraordinary rendition program, this right to the truth under the procedural limb of articles 3 and 5 extends beyond the victim and their families to the public at large. Only two of the subsequent rendition cases claimed that there was a right to truth under article 10. Both of these cases were rejected by the Court on the same ground as in El-Masri v The Former Yugoslav Republic of Macedonia (2013): that the substance of the complaint under article 10 was manifestly ill-founded because it overlapped with the merits of the complaint under the procedural limb of articles 3 and 5 (Al Nashiri v Poland 2015, [581]–[582]; Al Nashiri v Romania 2018, [731]–[732]). In each of the five rendition cases subsequent to El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court acknowledged the principle established in that case that the right to be informed of the truth existed under the procedural limb of articles 3 and 5. Following the precedent in El-Masri v The Former Yugoslav Republic of Macedonia (2013), in four of the five subsequent cases, the Court held that it was not just the applicant and their family that had a right to be informed of the truth but that the public also had a right to know the truth about how the extraordinary rendition program operated in Europe (Al Nashiri v Poland 2015, [495]; Husayn (Abu Zubaydah) v Poland 2015, [489]; Abu Zubaydah v Lithuania 2018, [620]; Al Nashiri v Romania 2018, [654]). This has established the principle that the right to the truth is a “collective” or “societal” right (Panepinto 2017; Fabbrini 2014). In the case of Nasr and Ghali v Italy (2016), the Court held that in contrast to the three cases which preceded it (El-Masri v The Former Yugoslav Republic of Macedonia (2013), Al Nashiri v Poland (2015), and Husayn (Abu Zubaydah) v Poland (2015)), the facts of the case had already been established by the national courts ([228]–[230]), so the question of the right to be informed of the truth had already been settled.

The Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) paved the way for subsequent cases to be brought before the Court by applicants alleging to have been subjected to unlawful detention and torture by the USA under the CIA’s extraordinary rendition program. The next section of this chapter evaluates how the principles established in the Court’s judgment in El-Masri v The Former Yugoslav Republic of Macedonia (2013) have since developed, with a focus on articles 3 and 5 of the Convention.

The Development of the Court’s Case Law on Extraordinary Rendition

In El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Macedonian authorities were directly involved in El-Masri’s initial unlawful detention and ill-treatment, before they transferred him into the custody of the CIA, where he was further detained and tortured under the extraordinary rendition program. In the cases that followed, the respondent state authorities were not directly involved in the detention and ill-treatment of the applicants. The question for the Court then was whether the applicants were within the jurisdiction of the respondent state, such that its responsibility was engaged for their unlawful detention and ill-treatment by the CIA, both within and outside their territory. This chapter examines this question first with reference to the substantive aspect of article 5 and article 3 of the European Convention, before examining the procedural aspect of article 3. In all five cases, the Court conducted a preliminary inquiry to determine the jurisdiction and responsibility of the respondent state under the Convention. In each case, the Court held that the applicants were within the jurisdiction of the respondent state, thus engaging their responsibility under the Convention (Al Nashiri v Poland 2015, [452]–[459]; Husayn (Abu Zubaydah) v Poland 2015, [449]–[456]; Nasr and Ghali v Italy 2016, [241]–[247]; Abu Zubaydah v Lithuania 2018, [581]–[587]; Al Nashiri v Romania 2018, [594]–[602]).

Article 5

Four of the five subsequent cases relate to just two applicants: Abd al-Rahim Al Nashiri, who brought separate cases against Poland (Al Nashiri v Poland 2015) and Romania (Al Nashiri v Romania 2018), and Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, who brought cases against both Poland (Husayn (Abu Zubaydah) v Poland 2015) and Lithuania (Abu Zubaydah v Lithuania 2018). Mr. Zayn al-Abidin Muhammad Husayn will be referred to by this name throughout this chapter, except where a direct quote refers to him as “Abu Zubaydah.” The facts in these four cases are remarkably similar; the two applicants were unlawfully detained by the CIA in a secret detention facility, known as a black site, within the respondent state’s territory, before being transferred outside of its territory under the extraordinary rendition program, where they were subjected to further detention and ill-treatment contrary to article 3.

The respondent states had not themselves detained the applicants in these five cases, as had been the case with El-Masri’s detention by Macedonian authorities in the former Yugoslav Republic of Macedonia. Nonetheless, the applicants argued that as per the principles established in El-Masri v The Former Yugoslav Republic of Macedonia (2013), the respondent states ought to have known that there was a risk that they would be detained arbitrarily. They should thus bear responsibility for the CIA’s violation of their article 5 rights for the whole of their captivity, both in the secret detention facilities within the territory of the respondent states and once they had been removed from their territory.

In Al Nashiri v Poland (2015) and Husayn (Abu Zubaydah) v Poland (2015), the Court acknowledged that the Polish authorities were not involved in the applicants’ detention in a secret detention facility in Poland by the CIA but highlighted that the whole US program of extraordinary rendition “depended on cooperation, assistance an [sic] active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated” (Al Nashiri v Poland 2015, [530]; Abu Zubaydah) v Poland 2015, [524]). By cooperating with the CIA and assisting in its initial detention of the applicants in Poland, Poland enabled the CIA to transfer Al Nashiri and Husayn to other secret detention facilities, thus exposing them to a risk of arbitrary detention in breach of article 5. The Court thus concluded that Poland’s responsibility was engaged in respect of both Al Nashiri and Husayn’ detention on its territory and after their transfer from Poland. In the case of Abu Zubaydah v Lithuania (2018) and Al Nashiri v Romania (2018), the Court simply followed its earlier judgments. It stated:

In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries, the Court found that the respondent States’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA … The Court does not see any reason to hold otherwise in the present case. (Abu Zubaydah v Lithuania 2018, [655]; Al Nashiri v Romania 2018, [689])

Again, it was immaterial to the Court that the Lithuanian and Romanian authorities were not involved in the detention of the applicants by the CIA; their “cooperation, assistance and active involvement” by making available airspace, airports, and detention facilities enabled the CIA both to detain the suspects arbitrarily in breach of article 5 within the respondent states’ jurisdiction and to transfer them into arbitrary detention outside of their territory. Based on the principles established in El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court held that the respondent states had violated the article 5 rights of these two applicants in each of the four cases.

In the above four cases, the Court held that the responsibility of the respondent state was engaged for the arbitrary detention of the applicants by the CIA outside their territory because of the cooperation and assistance which they provided in detaining the applicants at secret detention facilities within their territory. That cooperation and assistance included providing the infrastructure and support which enabled the CIA to detain the applicants before rendering them outside the territory of the respondent state. The case of Nasr and Ghali v Italy (2016) was, however, different to these four cases. Nasr was not at any point detained in a detention facility in Italy. He was abducted by the CIA and immediately removed from the territory of the respondent state, where he was taken first to Ramstein Air Base in Germany and ultimately to Egypt. The Court held that his unacknowledged and incommunicado detention in Egypt was in complete disregard to the guarantees enshrined in article 5, such that it constituted a particularly serious violation of his right to liberty and security (Nasr and Ghali v Italy 2016, [300]). However, unlike the previous cases, in which the Court held that the respondent states had provided cooperation and assistance to the CIA, the Court did not link the applicant’s detention by private individuals to acts or omissions of the Italian authorities. Instead, the Court simply noted that in earlier cases, it had previously held that the detention of terrorist suspects under the CIA’s extraordinary rendition program was arbitrary and that this principle also applied in this case. Italy knew that the applicant had been transferred outside of its territory by a CIA extraordinary rendition team. Thus, by permitting the CIA to abduct the applicant on their territory, the Italian authorities knowingly exposed him to the risk of arbitrary detention. The responsibility of Italy was therefore engaged for the entire period of the applicant’s detention (Nasr and Ghali v Italy 2016, [302]).

The Court adopted a similar approach to the applicants’ complaints under article 3 of the Convention. It considered first whether the respondent states were responsible for the ill-treatment of the applicants by the CIA within their jurisdiction and then separately whether they were responsible for the CIA’s treatment of the applicants once they had been transferred outside of their territory.

Article 3

The principles outlined by the Court in its decision in El-Masri v The Former Yugoslav Republic of Macedonia (2013) established that the respondent state was responsible for the applicant’s ill-treatment by the CIA within its territory because of the acquiescence and connivance of its authorities. Macedonian security forces had directly transferred El-Masri into the custody of the CIA and so had been considered to facilitate his torture at Skopje airport.

In the case of Al Nashiri v Poland (2015) 60 EHRR 16, however, which was the next case to be heard by the Court, the Polish authorities had had no direct contact with the applicant. The Court held that it did not matter that “the interrogations and, therefore, the torture inflicted on the applicant at the Stare Kiejkuty black site were the exclusive responsibility of the CIA and that it [was] unlikely that the Polish officials witnessed or knew exactly what happened inside the facility” (Al Nashiri v Poland (2015) 60 EHRR 16 [517]). What mattered was that “Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring” (Al Nashiri v Poland (2015) 60 EHRR 16 [517]). Poland was thus, through its “acquiescence and connivance,” responsible for the torture that Al Nashiri endured at the CIA black site in Poland. This included mock executions, the use of stress positions that nearly dislocated his arms from his shoulders, and threats that his female relatives would be abused in front of him.

The Court’s extension of the principle of acquiescence and connivance in the applicant’s ill-treatment to a situation in which the respondent state had no contact with the individual prior to him being taken into the custody of the CIA was similarly used in the cases of Husayn (Abu Zubaydah) v Poland 2015, [512]; Abu Zubaydah v Lithuania 2018, [642]; and Al Nashiri v Romania 2018, [459]. In each case, the Court acknowledged that the authorities of the respondent state did not know the details of what happened inside the CIA’s detention facility and did not witness the treatment to which the applicants were subjected. However, the fact that the “running of the detention facility was entirely in the hands of and controlled by the CIA” and that it was “CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting of torture on detainees” did not mean that the respondent states were not responsible for the activities of the CIA. This is because the Court held that the authorities ought to have known of the serious risk of ill-treatment and torture being carried out in the detention facility on their territory, either on the basis of their own knowledge about the various agreements they had entered into with the USA or because of the public information available at the time about the CIA’s ill-treatment of detainees. Thus, by enabling the CIA to detain the applicants on their territory, the respondent states exposed them to a risk of torture or inhuman or degrading treatment or punishment (Husayn (Abu Zubaydah) v Poland 2015, [512]; Abu Zubaydah v Lithuania 2018, [642]; and Al Nashiri v Romania 2018, [456]–[460]).

While the Court did not struggle to classify the treatment that Al Nashiri was subjected to in the secret detention facility in Poland as torture, it was faced with quite different facts in the cases of Husayn (Abu Zubaydah) v Poland (2015), Abu Zubaydah v Lithuania (2018), and Al Nashiri v Romania (2018). In these cases, in considering the severity of the treatment that the applicants were subjected to in the detention facilities in the respondent states, the Court also took into account the effect of the applicants’ prior experiences in CIA custody. In the case of Husayn (Abu Zubaydah) v Poland (2015), for example, Husayn was subject to a “reward-based interrogation approach” by the CIA, which combined enhanced interrogation procedures with periods of “debriefing,” in which his conditions of detention improved. The difference between the enhanced interrogation and debriefing being that the debriefing process “did not involve the most aggressive forms of enhanced interrogation, but consisted in obtaining information by means of interviewing” (Husayn (Abu Zubaydah) v Poland 2015, [505]). The Court was not able to ascertain whether Husayn was only “debriefed” rather than “interrogated” during his time in Poland. Nonetheless, it took account of the fact that while there may have been no physical ill-treatment of the applicant during his time in CIA detention in Poland, there was a significant psychological toll. This was because Husayn must have “faced the constant fear that if he failed to ‘comply’, the previous cruel treatment would at any time be inflicted on him again” (Husayn (Abu Zubaydah) v Poland 2015, [509]). That previous cruel treatment included systematic waterboarding among other enhanced interrogation methods. The Court considered the cumulative effect of Husayn’s interrogation and debriefing sessions to constitute “deliberate inhuman treatment causing very serious and cruel suffering” which amounted to torture in violation of article 3 of the Convention (Husayn (Abu Zubaydah) v Poland 2015, [510]–[511]). The Court looked again to the past treatment of Husayn and Al Nashiri in their cases against Lithuania and Romania, respectively. Echoing its earlier judgments, and using the same language for both cases, the Court stated that “the applicant was subjected to an extremely harsh detention regime, 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 torture and cruel treatment in the CIA’s hands and fear of his future fate” (Abu Zubaydah v Lithuania 2018, [640]; Al Nashiri v Romania 2018, [675]).

While in the above cases the Court determined that the treatment that the applicants were subjected to by the CIA within the territory of the respondent state amounted to a violation of article 3, it could not conduct the same assessment in the case of Nasr and Ghali v Italy (2016). This was because Nasr was not detained at a detention facility inside Italy; he was abducted by the CIA and immediately flown out of the country to Germany and then on to Egypt, where he alleged that he was subject to ill-treatment during interrogation sessions. The Court had previously held that the former Yugoslav Republic of Macedonia was responsible for the ill-treatment of El-Masri by the CIA even after they had removed him from their jurisdiction because the Macedonian authorities had known or ought to have known that by transferring him to the receiving state (or in this case, into the custody of the CIA), there was a risk of treatment contrary to article 3. In the cases that followed El-Masri v The Former Yugoslav Republic of Macedonia (2013), the respondent states did not themselves transfer the applicant into the custody of the CIA; the CIA merely took custody of the applicant. The question for the Court then was whether it could stretch its case law on extradition even further, to situations in which the respondent state had not itself transferred the applicant to the receiving state. In this scenario, the Court had to determine whether the responsibility of the respondent states was engaged for the CIA’s treatment of the applicants outside their territory.

In determining whether the respondent states were responsible for the treatment of the applicants by the CIA after they had been rendered from their territory, the Court merely dropped the word “extradition” when it referred to its past cases. In Al Nashiri v Poland, for example, the Court noted that it: “has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country” (Al Nashiri v Poland 2015, [454] emphasis added). The word “removed” in the final sentence replaced the word “extradited” in the earlier case law (see Soering v United Kingdom 1989, [91]). Thus, the removal of an individual has now become a passive activity, one that the respondent state does not seemingly have to be involved in to fall within the scope of responsibility under article 3. The Court continued: “Where it has been established that the sending state knew, or ought to have known at the relevant time, that a person removed from its territory was subjected to ‘extraordinary rendition’ … the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer” (Al Nashiri v Poland 2015, [454]). Thus, where the transfer of an individual from within the jurisdiction of a member state is effected through the means of extraordinary rendition, responsibility for any subsequent ill-treatment by private parties outside the territory of that state will be imputable to it, regardless of whether or not it was directly involved in the transfer. This includes situations like that in Nasr and Ghali v Italy (2016), in which the respondent state’s participation in the applicant’s removal from its territory was, to say the least, minimal.

In addition to their claims that the substantive aspect of their rights under articles 3 and 5 had been breached by the respondent states, the applicants also all argued that the respondent states had failed to conduct an effective investigation into the alleged violations. Unlike in the first case of El-Masri v former Yugoslav Republic of Macedonia (2013), the Court only considered whether the procedural aspect of article 3 had been breached, it did not address whether there was a separate violation of the procedural aspect of article 5. In all five of the subsequent cases, the Court held that the respondent states had failed in some respect to ensure that an effective investigation was conducted into the applicants’ alleged violations of article 3.

Procedural Aspect of Article 3

In both cases against Poland (Al Nashiri v Poland 2015; Husayn (Abu Zubaydah) v Poland 2015), and in Al Nashiri v Romania (2018), the Court held that investigations conducted by the respondent state failed to meet the requirements of being prompt, thorough, and effective.

In reference to Poland, the Court noted that on 11 March 2008, the Polish authorities opened an investigation into allegations that a CIA black site had operated in its territory as part of the US extraordinary rendition program. The Court criticized the delay in commencing this investigation, some 6 years after the detention and mistreatment of Al Nashiri and Husayn, on three grounds. First, that the authorities must have been involved at an early stage in the implementation of the extraordinary rendition program and thus knew about “the nature and purposes of the CIA’s activities on their territory between December 2002 and September 2003” (Al Nashiri v Poland 2015, [489]; Husayn (Abu Zubaydah) v Poland 2015, [483]). Secondly, Poland was publicly named as a host of a CIA black site in November 2005, at which time the prosecuting authorities had “a duty to open an investigation of their own motion if there was a justified suspicion that an offence had been committed” (Al Nashiri v Poland 2015, [491]; Husayn (Abu Zubaydah) v Poland 2015, [485]). No investigation was initiated. Finally, the Court noted that there was no sign that the investigation opened in March 2008 had made any progress in the six years that it had been ongoing. In fact, Poland tried to use the fact that its investigation into the allegations of ill-treatment against Al Nashiri and Husayn were still underway to defeat the applicants on the grounds that they had not exhausted the domestic remedies available to them. The Court rejected this argument. Noting that at the time of its judgment the investigation had taken eight years and had still not resulted in the identification of anyone responsible to prosecute, the Court determined that the applicants’ claims were admissible. The length of time that investigation had been in progress was one of the reasons that the Court held that the investigation failed to meet the requirement of promptness.

In the case of Al Nashiri v Romania (2018), the respondent state also tried to argue that the Court should not hear the complaint about the alleged violations of the procedural aspect of article 3 because the applicant had not exhausted all domestic remedies. The Romanian government argued that it had conducted a parliamentary inquiry into the allegations that the CIA operated its extraordinary rendition program on its territory shortly after the allegations came to light in 2005 and that it had also commenced a criminal investigation, which was still ongoing. The Court held that the parliamentary inquiry was an inadequate and insufficient response to the serious allegations of Romania’s involvement in the extraordinary rendition program, because the inquiry did not “concern the establishment of possible responsibility of State officials in the event of their complicity in the CIA scheme” nor was it “aimed at ensuring, even in general terms, the accountability of those who could have been involved in the execution of the alleged CIA operations in the country” (Al Nashiri v Romania 2018, [644]). Turning to the criminal investigation, the Court held that it could not be considered prompt on the grounds that it did not commence until July 2012, nearly seven years after allegations of Romania’s complicity in the program came to light. The thoroughness and effectiveness of the criminal investigation were further called into question due to the fact that in the six years that the investigation had been in progress, it was “apparently still directed at persons unknown and no individuals bearing responsibility for Romania’s role in the [High Value Detainee] Programme have so far been identified” (Al Nashiri v Romania 2018, [653]). Romania had thus violated article 3 in its procedural aspect.

The question of promptness arose again in the case of Abu Zubaydah v Lithuania (2018). In this instance, the criminal investigation undertaken by Lithuania was deemed by the Court to have commenced promptly. Allegations that a secret CIA detention facility operated in Lithuania first came to light in September 2009, and a month later, the Lithuanian Parliamentary Committee on National Security and Defence commenced an inquiry. Its report, which was endorsed by a resolution of the national parliament in January 2010, proposed the establishment of a criminal investigation into the actions of three officers of the Lithuanian State Security Department (two Directors General and a Deputy Director General). That investigation started in February 2010, a month after the parliamentary resolution, and the Court noted that for the first six months of the investigation, it could not be said that “the authorities failed to display procedural activity”: the prosecutor took evidence from 55 witnesses, addressed numerous requests for information to various bodies, consulted classified material, and carried out onsite inspections of two CIA detention facilities (Abu Zubaydah v Lithuania 2018, [611]). However, after June 2010, the investigation petered out and was discontinued seven months later. A fresh investigation commenced in January 2015 following the publication a year earlier of the US Senate Committee Report on the CIA’s detention and interrogation program. However, the Court noted that it too had not appeared to have made “any meaningful progress in investigating Lithuania’s complicity in the CIA [High Value Detainee] Program” nor had it identified any of the persons responsible (Abu Zubaydah v Lithuania (2018) ECHR 46454/11 [617]). Thus, the Court held that although the criminal investigation conducted by the Romanian Prosecutor had been prompt, it was not deemed to have been effective and thorough and was thus a violation of the procedural aspect of article 3 (Abu Zubaydah v Lithuania (2018) ECHR 46454/11 [621–[622]]).

The Italian response to allegations that the CIA had conducted extraordinary renditions in its territory was significantly different to that of the respondent states in the five other cases. Following a criminal investigation, the domestic Italian courts conducted a trial of 22 US citizens accused of participating in the extraordinary rendition of the applicant. Unlike the other cases then, in Nasr and Ghali v Italy (2016), a trial leading to convictions had taken place, albeit the trial was conducted in absentia. However, the Court identified two reasons that it still did not amount to an investigation sufficient to meet the procedural limb of article 3. First, the Italian authorities only prosecuted US citizens; it did not prosecute any of the members of the Italian military agency SISMi (Servizio per le Informazioni e la Sicurezza Militare) who were implicated in the abduction and rendition of Nasr. Secondly, even though 22 US citizens were convicted at trial, because they were absent, none of them actually served their prison sentence. Furthermore, the Italian president pardoned three of those convicted, and the Italian authorities did not issue an extradition request for the others. The European arrest warrants which they had issued had had no effect, because none of the 22 US citizens convicted by the Italian Court had returned to Europe. The Court held that ultimately, those convicted had in effect been granted impunity, because of the failure by the Italian authorities to ensure that they served their sentences. Thus, because the investigation had not led to the punishment of those responsible (even though it did lead to their identification), there had been a violation of the procedural aspect of article 3 in this case.

All the rendition cases involved allegations of violations of articles 3, 5, 8, 10, and 13. However, three of those cases also involved complaints that the respondent state had violated the applicants’ article 6 right to a fair trial.

A Flagrant Denial of Justice: The Right to a Fair Trial in Article 6

The first case to allege a violation of article 6 was Al Nashiri v Poland (2015). Al Nashiri did not complain that he had faced an unfair trial in Poland, but instead argued that, by enabling the CIA to transfer him from its territory, Poland had exposed him to a real risk of being transferred to a jurisdiction in which he would face a “flagrant denial of his right to a fair trial” in breach of article 6(1) of the European Convention (Al Nashiri v Poland 2015, [554]). The trial procedure in question was the Military Commission utilized by the USA for detainees held at Guantánamo Bay detention camp. A member state’s responsibility under article 6 will be engaged if there is a real and foreseeable risk that transferring an individual into the custody of a third party could lead to a trial in “flagrant denial of justice” (Al Nashiri v Poland 2015, [568]). The Court noted that in its case law, the term:

“flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. (Al Nashiri v Poland 2015, [563])

The Court identified three factors that exposed Al Nashiri to a risk of a flagrant denial of justice following his transfer into the custody of the US military at Guantánamo Bay. First, because the Military Commission was composed primarily of members of the US armed forces taking orders from the executive, it did not offer sufficient guarantees of impartiality or independence from the executive to constitute an independent and impartial tribunal as required by article 6(1) of the European Convention. Secondly, the Court held that the Military Commission was not a “tribunal established by law” as required by article 6(1) of the Convention. This was in light of the ruling by the US Supreme Court in Hamdan v Rumsfeld (548 U.S. 557 (2006)) that the Military Commission “lacked power to proceed” (Al Nashiri v Poland 2015, [566]). Thirdly, the Court highlighted that the admission of evidence obtained under torture was manifestly contrary to the right to a fair trial. Noting that it had already found that the applicant had been subject to torture within the meaning of article 3 of the Convention, the Court stated that in the applicant’s case, there could be “little doubt as to the fact that a large part of the important or even decisive evidence against him is necessarily based on his self-incriminating statements obtained under torture or, as he pointed out, on other witnesses testimony by terrorist suspects likewise obtained by the use of torture or ill-treatment” (Al Nashiri v Poland 2015, [567]). The Court thus held that Poland’s responsibility was engaged and there had been a violation of article 6(1) in this case (Al Nashiri v Poland 2015, [569]). Al Nashiri made the same complaint in his case against Romania, and the Court issued effectively the same judgment. It held that Romania had violated Al Nashiri’s right to a fair trial under article 6(1) on the same three grounds as Poland (Al Nashiri v Romania 2018, [719]–[722]).

The third case in which the applicant complained that the respondent state had violated article 6 was that of Husayn (Abu Zubaydah) v Poland (2015). As with Al Nashiri, Husayn argued that Poland should be held responsible for exposing him to a real and serious risk of a denial of justice by allowing the CIA to transfer him outside of its territory. Husayn’s case is, however, different to Al Nashiri’s in one key regard. At the time of the Court’s judgment, Husayn had not been charged with any criminal offence by the US authorities, nor had he been listed for trial by Military Commission. Thus, he was not currently facing an unfair trial, because he was not facing a trial at all. Nonetheless, the Court held that Husayn had been exposed to a risk of a flagrant denial of justice. There were four grounds for this. The first three were the same as those which the Court held applied to Al Nashiri in his cases against Poland and Romania (Husayn (Abu Zubaydah) v Poland 2015, [557]). The fourth recognized that in the absence of any criminal charges being laid against him, Husayn had been held in indefinite detention at Guantánamo Bay for the previous 12 years. According to the Court, this on its own amounted to a flagrant denial of justice (Husayn (Abu Zubaydah) v Poland 2015, [559]). The Court held that by cooperating and assisting in Husayn’s transfer from its territory, “despite a real and foreseeable risk that he could face a flagrant denial of justice,” Poland’s responsibility under article 6 was engaged, and there was a violation of Husayn’s right to a fair trial (Husayn (Abu Zubaydah) v Poland 2015, [560]–[561]).

Conclusions

The European Court of Human Rights has made it clear in its recent case law that extraordinary rendition constitutes a particularly grave violation of the fundamental human rights of those subjected to it. In the first case that it reported, that of El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court established a number of principles relating to the practice of extraordinary rendition. These have since been developed in the Court’s subsequent case law. These principles relate primarily to when a respondent state will be held responsible for the actions of private individuals, both within its jurisdiction and outside its territory.

In El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court established that the respondent state was responsible for the acts of the CIA on its territory because of its acquiescence and connivance in the ill-treatment of the applicant. However, the Court also stated that member states may be held responsible for any ill-treatment by private individuals on their territory about which they knew, or ought to have known, but which they failed to prevent. This paved the way for the subsequent cases to hold the respondent states responsible for the ill-treatment of the applicants by the CIA on their territory, even though – unlike the former Yugoslav Republic of Macedonia – they did not themselves participate in either the ill-treatment or transfer of the applicant. The Court used the same principle to classify when a member state would be held responsible for any ill-treatment by private individuals of persons after they had been removed from the territory of the state. If the state knew, or ought to have known, that the transfer of the individual was being effected through the means of extraordinary rendition, then responsibility for any subsequent ill-treatment by private parties outside the territory of the state will be imputable to it, regardless of whether or not it was directly involved in the transfer. This means that member states of the Council of Europe can be held responsible for the ill-treatment of individuals by the CIA under its extraordinary rendition program, even where, like in the case of Nasr and Ghali v Italy (2016), they did not themselves participate in any way in either the ill-treatment of the applicant, or even his transfer into the custody of the USA.

Recognizing that extraordinary rendition represents a particularly grave violation of human rights, the Court has thus taken a rather expansive view of when the state’s responsibility will be engaged for the actions of private individuals constituting torture or inhuman and degrading treatment or punishment under article 3. It has taken a similarly expansive view of the state’s responsibility for the arbitrary detention of applicants by private individuals under article 5. In the first rendition case, the Court held that El-Masri’s unacknowledged and incommunicado detention by Macedonian security forces in a hotel in Skopje from 31 December 2003 to 23 January 2004 constituted an arbitrary deprivation of liberty, contrary to article 5 of the Convention. In the other five cases, however, it was the CIA who detained the applicants in detention facilities; the respondent state did not itself take part in any physical detention of the applicant. Nonetheless, the Court held that the respondent states were responsible for the activities of the CIA in their jurisdiction. This was because of the cooperation and assistance that the respondent states provided the USA, for example, by making infrastructure available in which to detain the applicants.

In terms of the former Yuogslav Republic of Macedonia’s responsibility for El-Masri’s detention by the CIA outside its jurisdiction, in El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court applied its settled case law on extradition to find that by transferring the applicant into the custody of the CIA, the Macedonian authorities knew, or ought to have known, that he would be exposed to a risk of arbitrary detention outside its jurisdiction. In the five subsequent cases, the Court used the same precedent, despite the fact that the respondent state did not themselves transfer the applicants into the custody of the CIA; the CIA simply took custody of each of the applicants. In each of these cases, drawing on the principle established in El-Masri v The Former Yugoslav Republic of Macedonia (2013), the Court held that the respondent state ought to have known that by allowing the CIA to transfer the applicant outside of their territory, there was a real and serious risk of arbitrary detention contrary to article 5 of the Convention outside of their jurisdiction. Responsibility for the arbitrary detention of the applicants was thus imputable to the respondent state for the whole period of their captivity, including that both within and outside their territory.

For two of the applicants, this judgment was something of a pyrrhic victory. Al Nashiri and Husayn are currently detained as terrorist suspects at Guantánamo Bay detention camp. Al Nashiri was captured in the United Arab Emirates in 2002 and after a year of being transferred between secret detention facilities has been detained in Guantánamo Bay since 2003. Husayn was captured in Pakistan in 2002 and transferred into CIA custody. After four years of being moved between secret detention facilities, he was detained at Guantánamo Bay in 2006. Both men remain at Guantánamo Bay today, having each been detained for the past 16 years. Neither has been tried for any offence. In addition to the violation of their article 5 rights to liberty and security, the absence of any trial means that they have both experienced a flagrant denial of justice contrary to article 6. Even though the European Court has acknowledged these violations and ordered Poland, Lithuania, and Romania to compensate them financially, the Court’s judgment has not been able to change the situation in which they still find themselves.

Although the Court has not been able to resolve the ongoing violations of Al Nashiri and Husayn’s rights under articles 3, 5, and 6 of the European Convention, it has managed to establish some form of accountability for the role that member states played in the US extraordinary rendition program. The Court is unable to hold those who actually engaged in the human rights violations – the CIA extraordinary rendition teams – in these cases accountable. This is, of course, not the Court’s fault; it is the way the system has been established. Instead, it has expanded the situations in which member states will be held responsible for the gross violations of human rights by private individuals both within their jurisdiction and outside their territory. In doing so, the Court has provided the victims of extraordinary rendition from Europe an opportunity for legal redress which they have been denied by the judiciary in the USA (Fabbrini 2014). The Court has also attempted to increase accountability for violations by further developing the right to the truth within the procedural limb of article 3. Although it has rejected the idea that there is an independent right to truth in either article 10 or article 13, it has established that the right to be informed of the truth is not just an individual right for the victims of extraordinary rendition and their families but a collective right to be held by society as a whole. Furthermore, the Court’s judgments on the six above cases read as attempts to make public as much knowledge as possible about the extraordinary rendition program, thus in some sense serving the function which the applicants were initially denied by the respondent states because of their failure to investigate their allegations of violations of Convention rights.

The US counter-terrorism practice of extraordinary rendition in the war on terror constituted a particularly grave violation of human rights for those subjected to it. While the recent judgments of the European Court of Human Rights will not necessarily be able to prevent similar abuses from taking place in the future, they do warn member states that their responsibility for human rights violations carried out in the name of counter-terrorism will be engaged if they know or ought to have known about the violations, even when they are conducted by private individuals operating outside their territory.

Cross-References

References

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Copyright information

© Springer Nature Singapore Pte Ltd. 2019

Authors and Affiliations

  1. 1.Centre for Socio-Legal StudiesUniversity of Oxford, Wolfson CollegeOxfordUK

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