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 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.