Decisions

European Court of Human Rights July 24, 2014 Third country: United States custody. The CIA flew him into Poland on 5 December 2002 and out of Poland on 6 June 2003 on its rendition aircraft (paragraph 417). At the date of the judgment he was held at the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba (paragraph 41).

Disposition Unanimously: the Government’s objection of non-exhaustion dismissed; Poland “failed to comply with its obligations under Article 38 of the Convention”; violations of Article 3 in its procedural and its substantive aspect, of Articles 5, 8 and 13, and of Article 6 § 1; and a violation of Articles 2 and 3 taken with Article 1 of Protocol No. 6 “on account of the transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could be subjected to the death penalty”. EUR 100,000 for non-pecuniary damage. The judgment became final on 16 February 2015.

The Court found it “established beyond reasonable doubt” that the applicant arrived at Szymany on 5 December 2002 on the CIA rendition aircraft N63MU, was held from then until 6 June 2003 at the CIA detention facility at Stare Kiejkuty with the codename “Quartz”, was interrogated by the CIA and subjected to its enhanced interrogation techniques and to unauthorised techniques, and was flown out on the rendition aircraft N379P (paragraph 417). The treatment “amounted to torture within the meaning of Article 3 of the Convention” (paragraph 516). Poland “knew of the nature and purposes of the CIA’s activities on its territory at the material time” and cooperated in them, and it “ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention” (paragraph 442). The Court accepted the experts’ assessment that the torture was “the exclusive responsibility of the CIA” and that Polish officials were unlikely to have witnessed it, but held Poland responsible on account of its “acquiescence and connivance” in the programme (paragraph 517). On the transfer, it held that “by enabling the CIA to transfer the applicant to its other secret detention facilities, the Polish authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention” (paragraph 518), and that “at the time of the applicant’s transfer from Poland there was a substantial and foreseeable risk that he could be subjected to the death penalty following his trial before the military commission” (paragraph 578). Under Article 46 it required Poland “to seek to remove that risk as soon as possible, by seeking assurances from the US authorities that he will not be subjected to the death penalty” (paragraph 589).

Extraordinary rendition Secret detention Article 3 ECHR Death penalty Flagrant denial of justice Effective investigation Diplomatic assurances

Caution The judgment decides Poland’s responsibility under the Convention; the United States is not a party to the Convention or to the case. The Court’s findings of fact rest on evidence assessed as a whole, and it held that Poland had failed to comply with Article 38. The Committee of Ministers’ supervision of the judgment is set out on the Coalition’s page on Poland.

European Court of Human Rights July 24, 2014 Third country: United States custody. The CIA flew him into Poland on 5 December 2002, and on 22 September 2003 transferred him “to another CIA secret detention facility elsewhere” (paragraph 419). At the date of the judgment he was held at the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba (paragraph 41).

Disposition Unanimously: the Government’s objection of non-exhaustion dismissed; Poland “failed to comply with its obligations under Article 38 of the Convention”; the application admissible; violations of Article 3 in its procedural and its substantive aspect, of Article 5 and of Article 8; a violation of Article 13 “on account of the lack of effective remedies in respect of the applicant’s grievances under Articles 3, 5 and 8 of the Convention”; and a violation of Article 6 § 1 “on account of the transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could face a flagrant denial of justice”. EUR 100,000 for non-pecuniary damage and EUR 30,000 for costs and expenses. The judgment became final on 16 February 2015.

The Court found it “established beyond reasonable doubt” that the applicant arrived at Szymany with Mr Al Nashiri on 5 December 2002 on the CIA rendition aircraft N63MU, was held at the CIA facility at Stare Kiejkuty until 22 September 2003 and subjected there to the procedures and treatment applied to the CIA’s High-Value Detainees, and was then flown out on the aircraft N313P (paragraph 419). The treatment “amounted to torture within the meaning of Article 3 of the Convention” (paragraph 511). As in Al Nashiri, the Court accepted that the torture was “the exclusive responsibility of the CIA”, but held Poland responsible on account of its “acquiescence and connivance” in the programme (paragraph 512), and held that “by enabling the CIA to transfer the applicant to its other secret detention facilities, the Polish authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention” (paragraph 513). When he was transferred, “there was a real risk that his trial before the military commission would amount to a flagrant denial of justice” (paragraph 557). He had never been charged, and his detention without charge “by itself amounts to a flagrant denial of justice” (paragraph 559).

Extraordinary rendition Secret detention Article 3 ECHR Flagrant denial of justice Indefinite detention Effective investigation

Caution The judgment decides Poland’s responsibility under the Convention; the United States is not a party to the Convention or to the case. The Article 6 finding concerns the risk created by his transfer and his detention without charge; he had not been listed for trial before a military commission (paragraph 559). The Committee of Ministers’ supervision of the judgment is set out on the Coalition’s page on Poland.