European Court of Human Rights finds Lithuania and Romania committed human rights violations due to involvement in the CIA’s rendition program
Abu Zubaydah v Lithuania (European Court of Human Rights, Application No. 4654/11, 31 May 2018)
Al Nashiri v Romania (European Court of Human Rights, Application No. 33234/12, 31 May 2018)
Summary
The Chamber of the European Court of Human Rights (Court) held, in two separate decisions, that Lithuania and Romania both committed violations of the European Convention on Human Rights (Convention) due to their compliancy in the United States Central Intelligence Agency’s (CIA) rendition program.
The applicants in both cases were suspected of involvement in carrying out terrorist attacks and were detained by the CIA. It was alleged that Lithuania and Romania, respectively, had allowed the CIA to transport the applicants into their jurisdiction, where they had been subjected to torture and arbitrary detention by the CIA.
Abu Zubaydah v Lithuania (European Court of Human Rights, Application No. 4654/11, 31 May 2018)
Facts
Mr Abu Zubaydah was considered by United States (US) authorities as a key member of al-Qaeda and suspected of involvement in the 11 September 2001 terrorist attacks. The applicant has never been charged with any offence.
Mr Abu Zubaydah was first detained by the CIA in Pakistan in 2002 as the first “High Value Detainee” (HVD) as part of the HVD Programme established by the President Bush administration’s “war on terror”. Mr Abu Zubaydah claimed that following his initial detention, he was transferred to various locations, including to a CIA “black site” detention facility in Lithuania where he was detained from February 2005 to March 2006. It was alleged that throughout his detention by the CIA, the applicant was subjected to torture and other forms of ill-treatment. It was further alleged that Lithuania enabled the CIA to detain Mr Abu Zubaydah, that the Lithuanian Government allowed him to be transported to CIA detention sites in other countries where he was subjected to the same treatment, and that Lithuania failed to conduct a proper investigation into the allegations.
Mr Abu Zubaydah argued that the conduct of the CIA was within Lithuania’s jurisdiction and constituted a breach by Lithuania of the following Articles of the Convention: Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 (right to liberty and security), Article 6 (right to a fair trial within a reasonable time), Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy).
Decision
Factual findings
During the proceedings, any communication with Mr Abu Zubaydah was heavily restricted due to its classified nature, which prevented him from giving direct evidence to the Court. As a result, the Court was required to rely largely on circumstantial evidence. This included a 2014 US Senate Committee report on CIA torture which detailed the specific activities of the HVD Programme, international inquiries relating to CIA secret detention (including three reports by Parliamentary Assembly of the Council of Europe rapporteur Senator Dick Marty) and expert testimony from Senator Marty and two experts on the CIA rendition programme.
After thorough consideration of all of the evidence, the Court concluded that it had been established beyond reasonable doubt that at the time the applicant was detained:
(a) Lithuanian authorities had actual knowledge of the fact that the CIA operated, on Lithuanian territory, a detention facility for the purposes of interrogating terrorist suspects;
(b) Lithuanian authorities had cooperated in the preparation and implementation of the CIA rendition, detention and interrogation operations on its territory; and
(c) due to their knowledge of the nature and the purposes of the CIA’s activities on Lithuanian territory and their involvement in those activities, Lithuanian authorities knew that by enabling the CIA to detain the applicant on their territory, they were exposing him to serious risk of torture and ill-treatment.
Lithuania’s jurisdiction and responsibility
The Lithuanian Government argued that it lacked jurisdiction and responsibility, within the meaning of the Convention, in relation to the applicant’s complaints. The Court commented that the jurisdiction must be understood to be primarily territorial. Further, it observed that a State must be regarded as responsible for wrongful acts performed by foreign officials on its territory where its own authorities act in “acquiescence or connivance” with those acts.
In light of the factual findings outlined above, the Court held that it necessarily followed that the applicant’s complaints fell within the jurisdiction and responsibility of Lithuania within the meaning of the Convention.
Violations of the Convention
The Court held that there had been violation of Articles 3, 5, 8 and 13 of the Convention.
The Court found that there had been a violation of both the procedural and substantive aspect of Article 3. The procedural aspect was breached due to Lithuania’s failure to carry out an effective investigation into allegations of inhuman treatment and undisclosed detention. The substantive aspect of Article 3 had been contravened as Lithuania was complicit in the HVD Programme, in that it allowed the CIA to subject Mr Abu Zubaydah to inhuman treatment on Lithuanian territory and enabled him to be transferred out of the territory despite the real risk that he would be subject to the same inhuman treatment elsewhere.
The Court also held that there had been a violation of Article 5, due to Mr Abu Zubaydah’s undisclosed detention in Lithuania, as well as enabling him to be transferred out of the territory despite the real risk that he would be subject to undisclosed detention elsewhere.
Lithuania was also held to have violated Mr Abu Zubaydah’s rights under Article 8 as a result of the unlawful and undisclosed detention.
Finally, the Court held that no effective remedy had been made available in respect of the applicant’s complaints, in breach of Article 13.
Al Nashiri v Romania (European Court of Human Rights, Application No. 33234/12, 31 May 2018)
Facts
Al Nashiri v Romania (European Court of Human Rights, Application No. 33234/12, 31 May 2018) (Al Nashiri) concerned similar facts to Abu Zubaydah. Mr Al Nashiri was initially detained in Dubai in 2002 as a HVD, suspected of involvement in terrorist attacks including on a US Navy ship in 2000.
The applicant alleged that he was held at a CIA “black site” in Romania from April 2004 to October or November 2005.
In 2011 US Military officials brought capital charges against Mr Al Nashiri for his alleged role in terrorist attacks. These charges are still pending.
Mr Al Nashiri claimed that he was subjected to torture throughout his detention by the CIA, including in Romania. Mr Al Nashiri alleged that Romania was complicit in the detention and torture carried out by the CIA and that Romania allowed him to be transported to other “black sites” where he was subjected to the same treatment. It was further alleged that, despite a criminal investigation and Parliamentary inquiry, Romania failed to properly investigate the allegations. Mr Al Nashiri relied on similar Articles of the Convention to Mr Abu Zubaydah in respect of Romania’s alleged human rights contraventions.
Decision
Factual findings and Romania’s jurisdiction and responsibility
Given the similarities in the factual circumstances and allegations made by the applicants in both Al Nashiri and Abu Zubaydah, the Al Nashiri case concerned substantially similar evidence. This included the 2014 US Senate Committee report, reports and testimony of Senator Marty, as well as various experts on the CIA rendition programme.
On the basis of this evidence, the Court held that it was established beyond reasonable doubt that Romania knew of the nature and the purposes of the CIA’s activity at the material time, that Romania had cooperated in the preparation and execution of the CIA rendition programme and that Romania knew it was exposing Mr Al Nashiri to a serious risk of treatment in violation of the Convention by enabling the detention to occur in its territory.
Given these factual findings, the Court was satisfied that the conduct of the CIA officials in respect of Mr Al Nashiri was within the jurisdiction and responsibility of Romania.
Violations of the Convention
For substantively similar reasons to those in the Abu Zubaydah case, the Court found that Romania had contravened Articles 3, 5, 8 and 13 of the Convention.
In relation to Article 3, it was held that both the procedural and substantive aspects of the Article had been violated. The procedural aspect had been violated due to the deficiencies in the Romanian parliamentary inquiry and criminal investigation. These processes were deficient as they were delayed, limited in scope and failed to identify or hold any individuals to account.
In addition, the Court held that there had been breaches of Article 6(1) (right to a fair trial), Article 2 (right to life), Article 1 of Protocol No. 6 (abolition of the death penalty) and Article 46 (binding force and execution of judgments). The Court held these violations had occurred because Romania allowed Mr Al Nashiri to be transferred out of its jurisdiction, despite the real and foreseeable risk that he could face denial of justice and the death penalty at trial before the US Military Commission.
Commentary
These two decisions represent a significant step in holding European governments accountable for their involvement in illegal CIA activity, engaged in as part of the “war on terror” following the 11 September 2001 terrorist attacks in New York.
These decisions follow and affirm the Court’s decisions in relation to similar claims by the same applicants in relation to the conduct of the Polish Government in AlNashiri v Poland (European Court of Human Rights, Application No. 28761/11, 24 July 2014) and Abu Zubaydah v Poland (European Court of Human Rights, Application No. 7511/13, 24 July 2014). In those cases the Court held that the Polish Government was responsible for the torture of the applicants inflicted by the CIA within Poland’s jurisdiction, due to Poland’s acquiescence to the conduct.
The decisions in Abu Zubaydah and Al Nashiri also highlight the important evidentiary function of national and international reports and inquiries, as well as public media, in cases where applicants are suspected of terrorism charges and are unable to give direct oral evidence to the Court.
It is apparent that European governments cannot claim to not have knowledge of activities of foreign agents in their territory that contravene the Convention, where there is publically available information which establishes facts to the contrary. Where such contravention occurs and is acquiesced to, European governments will continue to be held to account.
The full text of the decision in Abu Zubaydah can be found here.
The full text of the decision in Al Nashiri can be found here.
Corrina Virtanen is a Solicitor at King & Wood Mallesons.