Case of European Court of Human Rights, May 31, 2018 (case ABU ZUBAYDAH v. LITHUANIA)

Defense:LITHUANIA
Resolution Date:May 31, 2018

FIRST SECTION

CASE OF ABU ZUBAYDAH v. LITHUANIA

(Application no. 46454/11)

JUDGMENT

STRASBOURG

31 May 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

PROCEDURE

THE FACTS

I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS

II. EVIDENCE BEFORE THE COURT

III. BACKGROUND TO THE CASE

A. The so-called “High-Value Detainee Programme”

  1. The establishment of the HVD Programme

    (a) The US President’s memoranda

    (i) Memorandum of 17 September 2001

    (ii) Memorandum of 7 February 2002

    (b) Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002

    (c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”

  2. Enhanced Interrogation Techniques

    (a) Description of legally sanctioned standard and enhanced interrogation techniques

    (b) Expanding the use of the EITs beyond Abu Zubaydah’s interrogations

  3. Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques)

  4. Conditions of detention at CIA “Black Sites”

  5. The scale of the HVD Programme

  6. Closure of the HVD Programme

    B. The United States Supreme Court’s judgment in Rasul v. Bush

    C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations

  7. Jeppesen Dataplan Inc.

  8. Richmor Aviation

  9. Other companies

    D. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate

  10. Course of the review

  11. Findings and conclusions

    IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE

    A. Restrictions on information about the applicant’s secret detention and his communication with the outside world

    B. The applicant’s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report

    C. The applicant’s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

    D. The applicant’s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

  12. The applicant’s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006

    (a) The applicant’s submissions

    (i) Rendition to Lithuania (17 or 18 February 2005)

    (ii) Rendition from Lithuania (25 March 2006)

    (b) Evidence before the Court

    (i) The 2015 Reprieve Briefing

    (α) As regards the colour-coded names of the CIA detention facilities and periods of their operation

    (β) As regards the CIA prisoners’ transfers into Lithuania

    – February 2005 transfers

    – October 2005 transfer

    – March 2006 transfer

    (ii) Expert evidence

    (iii) “Detention Site Violet” in the 2014 US Senate Committee Report

  13. Detention and treatment to which the applicant was subjected

    E. The applicant’s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

    F. The applicant’s detention at the US Guantánamo Bay facility since 5 September 2006 to present

    G. Psychological and physical effects of the HVD Programme on the applicant

    H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts

    I. Parliamentary inquiry in Lithuania

  14. The Seimas investigation and findings

  15. Extracts from transcripts of the Seimas’ debates on the CNSD Findings

    J. Criminal investigation in Lithuania

  16. Investigation conducted in 2010-2011

  17. Reopening of the investigation on 22 January 2015 and further proceedings

    V. RELEVANT DOMESTIC LAW AND PRACTICE

    A. Constitution of the Republic of Lithuania

    B. Criminal Code

    C. Code of Criminal Procedure

    D. Civil Code

    E. The Law on Intelligence

    F. The Statute of the Seimas

    G. The Law on the Seimas Ad Hoc Investigation Commissions

    H. The Constitutional Court’s case-law

    VI. RELEVANT INTERNATIONAL LAW

    A. Vienna Convention on the Law of Treaties

    B. International Covenant on Civil and Political Rights

    C. The United Nations Torture Convention

    D. UN Geneva Conventions

  18. Geneva (III) Convention

  19. Geneva (IV) Convention

    E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

    F. UN General Assembly Resolution 60/147

    VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

    A. United Nations Organisation

  20. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002

  21. Statement of the International Rehabilitation Council for Torture

  22. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)

    B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003

    C. International non-governmental organisations

  23. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002

  24. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002

  25. Human Rights Watch, “United States: Reports of Torture of Al‑Qaeda Suspects”, 26 December 2002

  26. International Helsinki Federation for Human Rights, “Anti‑terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003

  27. Amnesty International Report 2003 – United States of America, 28 May 2003

  28. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003

  29. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003

  30. Amnesty International, “Incommunicado detention/Fear of ill‑treatment”, 20 August 2003

  31. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004

  32. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005

  33. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody of 30 November 2005

    VIII. SELECTED MEDIA REPORTS AND ARTICLES

    A. International media

  34. Reports published in 2002

  35. Reports published in 2005

  36. ABC News reports of 2009

  37. Other Reports (2009- 2011)

    B. Lithuanian media

    IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA

    A. Council of Europe

  38. Procedure under Article 52 of the Convention

  39. Parliamentary Assembly’s inquiry - the Marty Inquiry

    (a) The 2006 Marty Report

    (b) The 2007 Marty Report

    (c) The 2011 Marty Report

    B. European Parliament

  40. The Fava Inquiry

  41. The 2007 European Parliament Resolution

  42. The Flautre Report and the 2012 European Parliament Resolution

  43. The 2013 European Parliament Resolution

  44. The 2015 European Parliament Resolution

  45. The October 2015 hearing before the LIBE

  46. The 2016 European Parliament Resolution

    C. The 2007 ICRC Report

    D. The 2010 UN Joint Study

    X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT

    Witness A

    Witness A1

    Witness A2

    Witness A3

    Witness A4

    Witness B

    Witness B1

    Witness B2

    Witness B3

    Witness B4 (also referred to as “person B” by the Government)

    Witness C

    Witness C1

    Witness C2 (also referred to as “person C” by the Government)

    Witness D

    Witness D1

    Witness E

    Witness E1

    Witness F

    Witness F1

    Witness G

    Witness G1

    Witness G2

    Witness H

    Witness H1

    Witness K

    Witness L

    Witness M

    Witness N

  47. Questioning on 9 March 2010

  48. Questioning on 16 March 2010

    Witness O

  49. Questioning on 9 March 2010

  50. Questioning on 10 March 2010

    Witness P

    Witness Q

    Witness R

    Witness S

    Witness T

  51. Questioning on 2 March 2010

  52. Questioning on 16 March 2010

    Witness U

    Witness U1

    Witness V

    Witness X

    Witness Y

    Witness Z

    XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT

    A. The 2011 CPT Report

    B. The Lithuanian Government’s Response to the 2011 CPT Report

    C. Mr Fava’s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland

    D. Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor

  53. Record of on-site inspection of Project No. 1 of 17 March 2010.

  54. Record of the on-site inspection of Project No. 2 of 4 June 2010

    E. Resolution and Operational Action Plan of 25 July 2002

    F. Report on the incident of 6 October 2005 in Vilnius airport

    G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009

    H. Letter from the Ministry of the Interior of 9 December 2009

    I. Letter from Palanga airport of 15 March 2010

    J. The Customs Department letter of 12 April 2010

    K. The SBGS letter of 27 April 2010

    XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT

    A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available...

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