European Convention on Human Rights - extraordinary renditions - state secrets privilege - right to the truth - attribution of conduct and responsibility.

Author:Pergantis, Vassilis

European Convention on Human Rights--extraordinary renditions--state secrets privilege--right to the truth--attribution of conduct and responsibility NASR V. ITALY. App. No. 44883/09. At European Court of Human Rights, February 23, 2016.

On February 23, 2016, a chamber of the European Court of Human Rights (Court) unanimously found Italy in violation of the European Convention on Human Rights (Convention) (1) 1 by virtue of its involvement in the extrajudicial transfer of a Muslim cleric from Italy to Egypt by agents of the United States Central Intelligence Agency (CIA). (2) Specifically, the Court held that Italy had violated the prohibition against torture and inhuman or degrading treatment (Art. 3), the prohibition against arbitrary detention (Art. 5), the right to respect one's private and family life (Art. 8), and the right to an effective remedy (Art. 13). The judgment builds upon several prior decisions by the Court in cases brought by victims of the CIA's extraordinary rendition program. (3) Although the judgment consolidates the conclusions reached in those prior decisions, it is notable for dealing inadequately with attribution in the context of state responsibility and for omitting any reference to the "right to the truth." In that respect, the Court seems to have backtracked from its (already timid) embrace of this right in its previous case law.

As determined by the Court, Osama Mustafa Nasr (also known as Abu Omar) was an Egyptian Muslim cleric who had been granted political refugee status in Italy but had come under investigation by the Italian authorities for terrorist activities. (4) On February 17, 2003, he was abducted in Milan in the middle of the day by CIA operatives with the acquiescence or connivance of the Italian military intelligence service (SISMi). He was transferred to the U.S. air base in Aviano, Italy, and flown first to Ramstein, Germany, and then to Egypt, where the authorities held him incommunicado and without charges until February 2007 (except for an interlude in 2004 when he was released for approximately a month). While detained, he was apparently subjected to ill-treatment; a medical certificate of May 2007 indicated that he suffered from post-traumatic stress disorder and showed visible signs of previously inflicted injuries (paras. 10-27).

Meanwhile, the details of Nasr's abduction started to unfold in Italy alter his wife filed a complaint about his disappearance to the police and a witness confirmed the abduction (para. 29). The Office of the Public Prosecutor in Milan conducted a thorough investigation that led in December 2006 to the indictment of twenty-six U.S. citizens (including CIA agents and diplomatic personnel) and six Italian citizens (para. 72). According to the Court, both U.S. and Italian intelligence authorities sought to obstruct the investigation by providing misleading information (para. 224).

Moreover, the Italian government and its secret services, while initially responsive to the prosecutor's requests, changed course as soon as the investigation revealed the involvement of Italian authorities in the abduction; they invoked the state secrets privilege (5) regarding all parts of the investigation that touched on the relationship between the CIA and SISMi (paras. 52-71). After protracted and complex judicial proceedings before the Italian Constitutional Court (initiated by the Italian prime minister against the public prosecutor of Milan for violating the state secrets privilege and thus usurping the power of the executive), the Constitutional Court confirmed that the state secrets privilege took precedence over any other interest. As a result, no evidence covered by the privilege could be used in the ongoing proceedings in Milan, (6) which rendered it virtually impossible to indict and convict any Italian agents. In the event, the Tribunal of Milan dismissed the case against the Italian agents but condemned twenty-three U.S. agents in absentia (para. 116). (7)

Finally, the U.S. agents were ordered to pay pecuniary damages to Nasr and his wife, Nabila Chali, in an amount to be specified in subsequent civil proceedings. Judging that they had no chance of actually receiving compensation since the condemned U.S. agents lacked assets in Italy, the two victims did not file the requisite civil suit and the damages remained unpaid (para. 144). In 2009, while the proceedings were still pending, Nasr and his wife took their case to the European Court of Human Rights.

After summarily rejecting Italy's admissibility objections concerning nonexhaustion of domestic remedies (paras. 195-214), the Court made some preliminary observations regarding the admissibility of evidence, the burden of proof, and the effect of the state secrets privilege in the proceedings at hand. This approach was a response to Italy's strategy of not contesting the occurrence of an extraordinary rendition but only the involvement of Italian authorities in that action, owing to the absence of sufficient proof (since the inculpatory evidence was covered by the state...

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