European Court of Human Rights

 

 

 

THIRD SECTION

Application no. 33234/12
Abd al Rahim Husseyn Muhammad AL NASHIRI
against Romania
lodged on 1 June 2012

STATEMENT OF FACTS

THE FACTS

1.  The applicant, Mr Abd al Rahim Hussayn Muhammad al Nashiri, is a Saudi national, who was born in 1965. He is currently detained in the Internment Facility at the US Guantanamo Bay Naval Base in Cuba. The applicant is represented before the Court by Mr J.A. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative (“the OSJI”), Mr R. Skilbeck, barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Ms A. Singh, attorney, member of the New York Bar and Senior Legal Officer at the OSJI, and also by Ms N. Hollander, attorney, member of the New Mexico Bar.

A.  Background

1.  USS Cole bombing in 2000

2.  On 12 October 2000 a suicide terrorist attack on the United States Navy destroyer USS Cole took place in Aden, Yemen when the ship stopped in the Aden harbour for refuelling. It was attacked by a small bomb-laden boat. The explosion opened a 40 foot hole in the warship, killing 17 American sailors and injuring 40 personnel.

3.  The applicant, considered to have been one of the most senior figures in Al’Qaeda, has been the prime suspect in the 2000 bombing. He has been suspected of masterminding and orchestrating the attack.

2.  MV Limburg bombing

4.  On 6 October 2002 a French oil tanker MV Limburg, while it was in the Gulf of Aden some miles offshore, was rammed by a small explosives-laden boat which detonated. The tanker caught fire and approximately 90,000 barrels (14,000 m³) of oil leaked into the Gulf of Aden. One crew member was killed and twelve others injured. The style of the attack resembled the suicide USS Cole bombing described above. The applicant has been suspected of playing a role in the attack.

3.  The so-called “High Value Detainees Programme”

5.  After 11 September 2001 the US Government began operating a special interrogation and detention programme designated for suspected terrorists. On 17 September 2001 the US President signed a classified Presidential Finding granting the Central Intelligence Agency (“the CIA”) extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned.

6.  On an unspecified later date the CIA established a programme in the Counter-terrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as “the CTC program” (see also paragraphs 7-10 below) but, subsequently, it was also called “the High-Value Detainees Program” (“the HVD Programme”) (see also paragraph 9 below), or the Rendition Detention Interrogation Program (“the RDI Program”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 67 and followings below). For the purposes of the present case, it is referred to as “the HVD Programme”.

7.  On 24 August 2009 the American authorities released a report prepared by John Helgerson, the CIA inspector general, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September 2001-October 2003”, with appendices A-F, had previously been classified as “top secret”. This report also mentioned the applicant. It was considerably redacted; on the whole more than one-third of the 109-page document was blackened out.

8.  The report starts from a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the Counterterrorist Centre (“CTC”) to detain and interrogate terrorists, among which the applicant, at sites abroad. It continues as follows:

“He also informed OIG that he had just learned of and dispatched a team to investigate [REDACTED] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorised interrogation techniques with a detainee, Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In January 2003, OIG initiated a review of the Agency counter-terrorism detention and interrogation activities [REDACTED] and the incident with Al-Nashiri.”

9.  The background of that programme was explained in paragraphs 4-5 as follows:

“4.  [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al’Qaeda high value detainees.

5.   [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al’Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated U.S. policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.”

10.  As explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium Value Detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High Value Detainees” (also called “HVD”) were given the highest priority for capture, detention, and interrogation. In some CIA documents they are also referred to as “High Value Targets” (“HVT”).

The applicant fell into this category.

11.  In paragraph 6 of the report, in relation to the “legal parameters and constraints for interrogations” of suspected terrorists, it is stated that, following extensive consultations with the US Department of Justice and the National Security Council legal and policy staff, it was considered that “in most instances relevant to counter-terrorism detention and interrogation activities [redacted] the criminal prohibition against torture, ... is the controlling legal constraint on interrogations of detainees outside the United States”. It was further mentioned that in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“the EITs”), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided “the foundation for the policy and administrative decisions that guided the CTC Program”.

12.  The EITs are described in paragraph 36 of the 2004 CIA Report as follows:

“[1.]  The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.

[2.]  During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.

[3.]  The facial hold is used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes.

[4.]  With the facial or insult slap, the fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe.

[5.]  In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.

[6.]  Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.

[7.]  During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.

[8.]  The application of stress positions may include having the detainee sit on file floor with his legs extended straight out in front of him with his anus raised above his head or kneeling on the floor while leaning back at a 45 degree angle.

[9.]  Sleep deprivation will not exceed 11 days at a time.

[10.]  The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20.to 40 seconds and the technique produces the sensation of drowning and suffocation.”

13.  Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003) refers to “legally sanctioned interrogation techniques”. It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”.

The techniques included, in ascending degree of intensity:

1.  Standard measures (i.e. without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).

2.  Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.

14.  The CIA agents were authorised to use 4 standard interrogation techniques (sleep deprivation not exceeding 72 hours; continual use of light or darkness in a cell, loud music and white noise (background hum)) as identified in November 2002 without the Headquarters’ prior approval. The use of the EITs required a prior approval (paragraph 89 of the 2004 CIA Report).

14.  Appendix C to the 2004 CIA Report - Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002 was prepared in connection with the application of the EITs to Abu Zubaydah, the first high-ranking Al’Qaeda prisoner who was to be subjected to those interrogation methods. It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ... the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.

15.  The CIA 2004 Report further states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, “this resulted in the production of an undated and unsigned document entitled “Legal principles Applicable to CIA Detention and Interrogation of Captured Al’Qaeda Personnel”. The document is still classified as top secret. Certain parts are, however, rendered in the 2004 CIA report. For instance, the report states the following:

“... the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al’Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed ...

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.”

16.  The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion.

17.  As established in paragraph 51 of the report, in November 2002 CTC initiated training courses for CIA agents involved in interrogations. In January 2003 formal “Guidelines on Confinement Conditions for CIA Detainees” and “Guidelines on Interrogations Conducted Pursuant to [REDACTED]” were approved (paragraph 50).

18.  The application of the EITs to other terrorist suspects in CIA custody, including the applicant in the present case, began in November 2002.

19.  On 6 September 2006 the US President delivered a speech announcing the closure of the HVD programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantanamo Bay.

4.  Role of Jeppesen Company

20.  Jeppesen Dataplan is a subsidiary of Boeing based in San Jose, California. According to the company’s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients.

21.  In the light of reports on rendition flights, a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism.

22.  In 2007, the American Civil Liberties Union (“the ACLU”) filed a federal lawsuit against Jeppesen Dataplan Inc. on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.

23.  In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government’s appeal, an 11-judge panel of the 9th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU’s request to hear the lawsuit.

B.  The particular circumstances of the case

1.  The applicant’s capture, transfer to the CIA’s custody, his subsequent detention and further transfers during CIA custody

24.  At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates.

25.  By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report:

“7.  [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.”

26.  Subsequently, US agents took him to a secret CIA prison in Afghanistan named “Salt Pit”. During his detention, the interrogators subjected him to prolonged stress standing positions, during which his wrists were shackled to a bar or hook in the ceiling above the head for at least two days.

27.  After a brief stay at the “Salt Pit”, US agents took him to yet another secret CIA prison in Bangkok, Thailand, where he remained until 4 December 2002. The CIA subjected the applicant to the EITs (see also paragraphs 9-16 above) from November 2002 until 4 December 2002. In particular, during two separate interrogation sessions they subjected him to the so-called “waterboarding”.

28.  The applicant was “rendered” to Poland under the HVD Programme on or about 5 December 2002. More detailed information on this aspect is provided in his application against Poland, n^o 28761/11 (see paragraphs 27-32 of “Statement of facts”).

29.  After his transfer out of Poland, the applicant was detained in Rabat, Morocco, until 22 September 2003, when he was flown to the US Naval Base in Guantanamo Bay.

30.  On 27 March 2004 the CIA flew the applicant from Guantanamo Bay back to Rabat.

31.  Subsequently, according to the applicant, he was moved to the CIA secret detention facility in Bucharest, Romania, and remained there until he was finally transferred to Guantanamo Bay.

2.  Transfers to Romania and detention in the so-called “black site” in Bucharest

32.  The applicant submits that after his transfer out of Poland, he was held in various secret detention facilities abroad, including a CIA prison in Bucharest, named “Bright Light”, sometime between 6 June 2003 and 6 September 2006, when he was finally transferred to Guantanamo Bay.

33.  The specific location of the detention facility in Bucharest – the basement of a government building – became known to the applicant on 8 December 2011.

34.  As for the exact dates of the transfers to Romania during the period between 6 June 2003 and 6 September 2006 the applicant further refers to a 2007 Council of Europe report (“the 2007 Marty report” – see below), which identifies N313P as a “rendition plane”, which, according to the flight plans of 22 September 2003, had as destination Constanţa and Bucharest, according to the Romanian officials.

35.  The applicant, relying on official documents disclosed by the Romanian Civil Aeronautical Authority (Autoritatea Aeronautica Civilă Română – AACR) to the Romanian NGO, Association for the Defence of Human Rights – The Helsinki Committee (APADOR‑CH), states that those documents confirm that the flight N313P arrived at Băneasa airport in Bucharest, on 22 September 2003. In this connection, the applicant produced a letter from the Romanian Civil Aeronautical Authority to APADOR-CH dated 29 July 2009. The letter, in so far as relevant, reads as follows:

“The Romanian Civil Aeronautical Authority located in (...) represented by (...) in compliance with the stipulations of the court decision no. 3580 of 15 December 2008 pronounced by Bucharest District Court, we hereby present in the annex to this document the answers to your inquiries included in address no. 261/07.08.2008.

Annex to the address no. 19602 of 29.07.2009

General specification:

The data provided below do not indicate with certainty that these flights were carried out. According to the regulations in effect and applicable on the respective dates, AACR does not have any document that would identify the actual performance of these flights. The information represents planned intentions that AACR was notified about.

...

01.01.2003 – 31.12.2003

N313P – 2 flights

N478GS – 1 flight

N379P – 1 flight

N85VM – we do not have any records of the requested information

N227SV - we do not have any records of the requested information

N2189M – 2 flights

01.01.2004 – 31.12.2004

N313P – 2 flights

N478GS – we do not have any records of the requested information

N379P – we do not have any records of the requested information

N85VM – we do not have any records of the requested information

N227SV - we do not have any records of the requested information

N2189M – we do not have any records of the requested information

Answer for point 3:

01.01.2003 – 31.12.2003

N313P – 2 flights

1.

Flight itinerary (departure sites, stop sites, destination place): Constanţa - Rabat

Airport(s) in Romania where it landed: Băneasa

The date of landing and the date on take-off: 23.09.2003; we do not hold any recordings of the date when it took off

Flight purpose: private non-commercial

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

-          in Romania, it is not mandatory to report the number of people (crew and passengers)

-          Crew –

-          Passengers: 9 (according to the date provided by the applicant)

2.

Flight itinerary (departure sites, stop sites, destination place): Szczytno – Constanţa

Airport(s) in Romania where it landed: Băneasa

The date of landing and the date of take-off: 22.09.2003; we do not hold any recordings of the date when it took off

Flight purpose: private non-commercial

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

-          in Romania, it is not mandatory to report the number of people (crew and passengers)

-          Crew –

-          Passengers: 9 (according to the date provided by the applicant)

...

01.01.2004 – 31.12.2004

N313P – 2 flights

Flight itinerary (departure sites, stop sites, destination place): we do not hold any records of the departure site – Timişoara

Airport(s) in Romania where it landed: Timişoara

The date of landing and the date on take-off: 25.01.2004; we do not hold any recordings of the date when it took off

Flight purpose: maintenance refuelling stop

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

-          Crew – we do not hold any records of the requested information

-          Passengers – we do not hold any records of

...”

36.  The applicant further refers to several international reports that disclose evidence in relation to various “CIA-related aircrafts” operating rendition flights.

37.  Among others, he states that the 2007 European Parliament report noted that a flight with registration number N478GS suffered an accident on 6 December 2004 when landing in Bucharest – the aircraft reportedly took off from Bagram Air Base in Afghanistan – and its seven passengers disappeared following the accident among which the “passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with ammunition”.

38.  The prisoners to be held in CIA prison, including the applicant, were flown to Bucharest and brought to “Bright Light” in vans. CIA operatives drove down a side road, entered the building compound through a rear gate that led to the actual prison and transferred the prisoners to the basement.

The basement of the building consisted in six prefabricated cells on springs, keeping them slightly off balance and causing disorientation among some prisoners held there. Each cell had a clock arrow pointing to Mecca.

39.  The applicant was subjected to torture and inhuman and degrading treatment while he was held incommunicado in a secret prison on Romanian territory. He describes these treatments as indicated below at paragraph 46.

40.  The use of the EITs on the applicant and his ill-treatment, in particular threats and subjection to prolonged stress positions at the relevant time when he was, as he alleges, held in Romania is also described in the International Committee for the Red Cross (“the ICRC”) Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 (“the 2007 ICRC Report”), based on interviews with the applicant and 13 other high-value detainees after they were transferred to Guantanamo Bay (for a detailed description see paragraphs 92 and followings below).

3.  Final transfer to the US Gunatanamo Bay Naval Base

41.  No later than 6 September 2006, Romanian authorities assisted the CIA in secretly transferring the applicant from Bucharest.

There was apparently no attempt by the Romanian Government to seek diplomatic assurances from the United States to avert the risk of his being subjected to further torture, incommunicado detention, an unfair trial, or the death penalty when in the US custody.

42.  The applicant states that that the Romanian Government granted licences and overflight permissions to facilitate the CIA rendition flights and that the Romanian Civil Aeronautical Authority officials collaborated with Jeppesen (and, by extension, with Jeppesen’s client, the CIA) by accepting the task of navigating this disguised flight into Romanian airports.

4.  The applicant’s detention in Guantanamo Bay and his trial before the Military Commission

43.  On 6 September 2006 the US President publicly acknowledged that 14 “high value detainees”, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantanamo Bay Internment Facility.

44.  Since an unspecified date, presumably in September 2006, the applicant has been detained in the US Naval Base in Guantanamo Bay. By that time, he had already been held in undisclosed detention for nearly 4 years.

45.  On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “enemy combatant” (i.e. an individual who was part of or supporting Taliban or Al’Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “personal representative” was appointed for him, but this person did not act as counsel and the applicant’s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing.

46.  According to a partially redacted transcript of that hearing, the applicant stated that he “[had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him. He also stated that he had made up stories during the torture in order to get it to stop and that “[f]rom the time I [had been] arrested five years ago, they [had] been torturing me. It [had] happened during interviews. One time they [had] tortured me one way and another time they [had] tortured me in a different way”. The applicant’s reply to the President of the Tribunal’s request to describe the methods that were used, is largely redacted from the transcript of the hearing. The unredacted portion however states that: “before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body”. He also stated that “they used to drown me in water. So I used to say yes, yes.” Further details relating to his own description of his treatment are redacted from the transcript.

44.  On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000.

47.  On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision.

48.  On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission.

49.  Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government’s method of transporting the applicant to legal proceedings in Guantanamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel.

50.  Shortly after this motion was filed, the applicant’s arraignment –which signifies the start of his trial before a military commission – was set for 9 February 2009.

51.  On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration’s review of all detentions at Guantanamo Bay. In response to this order, the Government requested a 120-day postponement for the 9 February 2009 arraignment.

52.  On 25 January, 2009 the military judge assigned to the applicant’s military commission denied the Government’s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant’s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody.

Hours after this notice was filed, on 5 February 2009, the US Government officially withdrew charges from the military commission, thus removing the applicant’s case from the military judge’s jurisdiction.

53.  Military commission rules applicable to the applicant have changed since the time he was transferred from Poland and are now governed by the Military Commission Act of 2009, which was enacted on 28 October 2009. However, they still provide for the death penalty and retain many of the deficiencies associated with the previous military commission rules.

54.  The United States Secretary of Defense or his designee acts as the convening authority for a given commission, approves charges for trial by a military commission and selects the commission members who are required to be members of the armed forces on or recalled to active duty, and as such are subordinate to the Secretary of Defense. Military commissions still apply only to non-US citizens. The current rules place no limits on the length of time within which a suspect must be charged or tried. Indeed, they expressly exempt military commissions from speedy trial requirements. Furthermore, the current military commission rules allow for the accused to be denied access to classified information or evidence and, unlike US federal court procedures which bar the admission of hearsay, they expressly permit hearsay evidence and do not bar convictions based mainly on such evidence.

55.  The applicant submits that, given the widespread torture and abuse of US terrorism suspects, whose statements could be introduced as hearsay evidence against him, he is in consequence unable to confront witnesses against him. Unlike US federal court procedures which bar the admission of evidence derived from coerced statements, the current military commission rules admit evidence derived from coerced statements if that evidence would have been otherwise obtained and the use of such evidence would be consistent with the interests of justice. Moreover, the military commissions will still be held in the remote location of Guantanamo Bay, thereby significantly hindering public access to the proceedings against the applicant. Finally, there is considerable uncertainty associated with the current military commission rules, which were enacted as recently as October 2009 and have been applied so far in only three cases, none of which involved the death penalty.

56.  In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantanamo Bay.

57.  On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators in the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15 May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со‑conspirator in the USS Cole bombing.

58.  The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “convening authority” for the military commissions, for decision whether to reject the charges or to refer some, all or none of them for trial before the military commission.

59.  On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011. In the applicant’s view, this implied that he would shortly thereafter make a decision on whether capital charges should be referred to a specified military commission for trial.

60.  The military commission hearing in the applicant’s case began on 17 January 2012.

5.  International inquiries relating to CIA secret detentions and renditions of suspected terrorists in Europe

(a)  Human Rights Watch Reports

61.  On 6 November 2005 the Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”). It was given 2 days after the Washington Post had published material revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries”.

62.  The statement read, in so far as relevant, as follows:

“Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post’s allegations that there were detention facilities in Eastern Europe.

Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research.

According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport.

The records show that the N313P plane landed the next day, September 23, 2003, at the Mihail Kogalniceanu military airfield in Romania. The flight records indicate that the plane flew on to Morocco the same day, and then to Guantanamo Bay. The Department of Defense, which releases information about all detainee transfers to Guantanamo, released no statement about a transfer to Guantanamo around this date ...

According to our research, the United States has been using the Mihail Kogalniceanu airfield in Romania for operations in Iraq and Afghanistan since 2002, and the base has been closed to the public and journalists since early 2004. Secretary of Defense Donald Rumsfeld visited Romania and the Mihail Kogalniceanu base in October 2004. The N313P plane also flew from Kabul to Timisoara airport in Romania on January 25, 2004.

On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports.

...

Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in the Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees.

Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.

Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al‑Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002.

...

Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings.”

63.  On 30 November the Human Rights Watch published a “List of Ghost Prisoners Possibly in CIA Custody” (“the 2005 HRW List”), which included the applicant. The document reads, in so far as relevant, as follows:

“The following is a list of persons believed to be in U.S. custody as ‘ghost detainees’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other "ghost detainees" held by the United States.

Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.

Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.

The current location of these prisoners is unknown.

List, as of December 1, 2005:

...

9.  Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘George W. Bush: Record of Achievement, Waging and Winning the War on Terror’, available on the White House website. Previously listed as ‘disappeared’ by Human Rights Watch. ...”

(b)  Council of Europe

(i)  Procedure under Article 52 of the Convention

64.  In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Romania.

The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed.

65.  The Romanian Government replied on an unspecified date denying that unacknowledged deprivation of liberty or illegal transport took place on Romanian territory.

66.  On 1 March 2006 the Secretary General released his report on the use of his powers under Article 52 of the Convention (SG/Inf (2006) 5) of 28 February 2006 based on the official replies from the member states.

(ii)  Parliamentary Assembly’s inquiry - “the Marty inquiry”

67.  On 1 November 2005 the Parliamentary Assembly of the Council of Europe launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur.

68.  On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states’ international legal obligations, particularly under the European Convention on Human Rights.

(α)  The 2006 Marty Report

69.  On 7 June 2006 Mr Dick Marty presented to the Parliamentary Assembly his first report prepared in the framework of the investigation launched on 1 November 2005, revealing what he called a global “spider’s web” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states, including Romania. The document, as published by the Parliamentary Assembly, is entitled “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states” (Doc. 10957) and commonly referred to as “the 2006 Marty Report”.

68.  Chapter 1.3 of the 2006 Marty Report, entitled “Secret CIA prisons in Europe?”, reads, in so far as relevant, as follows:

“7.  This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), the Washington Post and the ABC television channel. Whereas the Washington Post did not name specific countries hosting, or allegedly having hosted, such detention centres, simply referring generically to ‘eastern European democracies’, HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following the Washington Post’s revelations.

According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called "enhanced interrogation techniques’) before being transferred to CIA facilities in North Africa. It is interesting to recall that this ABC report, confirming the use of secret detention camps in Poland and Romania by the CIA, was available on the Internet for only a very short time before being withdrawn following the intervention of lawyers on behalf of the network’s owners. The Washington Post subsequently admitted that it had been in possession of the names of the countries, but had refrained from naming them further to an agreement entered into with the authorities. It is thus established that considerable pressure was brought to bear to ensure that these countries were not named. It is unclear what arguments prevailed on the media outlets in question to convince them to comply. ...”

70.  Chapter 2.2, entitled “Components of the spider’s web”, describes the network of rendition flights. It is illustrated by a graph, showing connections between various places of rendition, transfer and detention places worldwide. It reads, in so far as relevant, as follows:

“39.  In addition to CIA black sites’, the spider’s web also encompasses a wider network of detention facilities run by other branches of the United States Government. Examples reported in the public domain have included the US Naval Base at Guantanamo Bay and military prisons such as Bagram in Afghanistan and Abu Ghraib in Iraq. Although the existence of such facilities is known, there are many aspects of their operation that remain shrouded in secrecy too.

40.  It should also be noted that ‘rendition’ flights by the CIA are not the only means of transporting detainees between different points on the web. Particularly in the context of transfers to Guantanamo Bay, detainees have been moved extensively on military aircraft, including large cargo planes. Accordingly, military flights have also fallen within the ambit of my inquiry.

The graphic included in this report depicts only a small portion of the global spider’s web. It consists of two main components.

42.  First it illustrates the flights of both civilian and military aircraft, operated by the United States, which appear to be connected to secret detentions and unlawful inter-state transfers also involving Council of Europe member States. This inquiry is based on seven separate sets of data from Eurocontrol, combined with specific information from about twenty national aviation authorities in response to my requests. In this way, we have obtained a hitherto unique database.

43.  Second, it distinguishes four categories of aircraft landing points, which indicate the different degrees of collusion on the part of the countries concerned. These landing points have been placed into their respective categories as follows on the basis of the preponderance of evidence gathered:

Category A: ‘Stopover points’ (points at which aircraft land to refuel, mostly on the way home) ...; Category B: ‘Staging points’(points from which operations are often launched - planes and crews prepare there, or meet in clusters) ...; Category C: ‘One-off pick-up points’ (points from which, according to our research, one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systematic occurrence) ...; Category D: ‘Detainee transfer / Drop-off points’ (places visited often, where flights tend to stop for just short periods, mostly far off the obvious route – either their location is close to a site of a known detention facility or a prima facie case can be made to indicate a detention facility in their vicinity): Cairo; Amman; Islamabad; Rabat, Kabul; Guantanamo Bay; Timisoara/Bucharest; Tashkent; Algiers; Baghdad; Szymany.”

71.  Chapter 2.6.1 refers to Romania. It states, in so far as relevant, as follows:

“56.  Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timisoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic Authority for confirming these flight movements.

57.  It is known that detainee transport flights are customarily night flights, as is the case of the other rendition flights already documented. The only other points on this rendition circuit from which the plane took off at a similar hour of the morning were Rabat, Morocco (departure at 2.05 am) and Skopje, "the former Yugoslav Republic of Macedonia" (hereinafter "Macedonia") (departure at 1.30 am). In both of these cases, we possess sufficient indications to claim that when the plane left its destination, it was carrying a prisoner to a secret detention centre situated in Kabul.

58.  We can likewise affirm that the plane was not carrying prisoners to further detention when it left Timisoara. Its next destination, after all, was Palma de Mallorca, a well-established “staging point”, also used for recuperation purposes in the midst of rendition circuits.

59.  There is documentation in this instance that the passengers of the N313P plane, using US Government passports and apparently false identities, stayed in a hotel in Palma de Mallorca for two nights before returning to the United States. One can deduce that these passengers, in addition to the crew of the plane, comprised a CIA rendition team, the same team performing all renditions on this circuit.

60.  The N313P plane stayed on the runway at Timisoara on the night of 25 January 2004 for barely one hour. Based on analysis of the flight capacity of N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is highly unlikely that the purpose of heading to Romania was to refuel. The plane had the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul that night – twice previously on the same circuit, it had already flown longer distances of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers).

61.  It should be recalled that the rendition team stayed about 30 hours in Kabul after having "rendered" Khaled El-Masri. Then, it flew to Romania on the same plane. Having eliminated other explanations – including that of a simple logistics flight, as the trip is a part of a well-established renditions circuit – the most likely hypothesis is that the purpose of this flight was to transport one or several detainees from Kabul to Romania.

62.  We consider that while all these factual elements do not provide definitive evidence of secret detention centres, they do justify on their own a positive obligation to carry out a serious investigation, which the Romanian authorities do not seem to have done to date.”

72.  Chapter 6, entitled “Attitude of governments”, states, among other things, the following:

“230.  It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known.”

73.  In Chapter 8.2 concerning parliamentary investigations undertaken in certain member states, the report refers to Romania under the title “Romania and "the former Yugoslav Republic of Macedonia": no parliamentary inquiry”:

“253.  To my knowledge, no parliamentary inquiry whatsoever has taken place in either country, despite the particularly serious and concrete nature of the allegations made against both. ...”

74.  Chapter 11 contains conclusions. It states, inter alia, the following:

“280.  Our analysis of the CIA rendition’ programme has revealed a network that resembles a ‘spider’s web’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘web’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.

...

282.  In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘rendition circuits’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres.

...

287.  Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are "guilty" for having tolerated secret detention sites, but rather it is to hold them "responsible" for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations.

288.  In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible):

...

289.  Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non specified number of persons whose identity so far remains unknown:

-  Poland and Romania, concerning the running of secret detention centres;

...”

(β)  The 2007 Marty Report

75.  On 8 June 2007 the Parliamentary Assembly adopted the second report prepared by Mr Dick Marty (“the 2007 Marty Report”), revealing that high value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005.

The report relied, inter alia, on the cross-referenced testimonies of over 30 serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system.

76.  The introductory remarks read, in so far as relevant:

“7.  There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, the Washington Post simply referred generically to ‘eastern European democracies’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of ‘high value’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.

8.  The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘need to know.’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA’s illegal activities on their territories.

...

10.  In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret.

11.  In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity.

12.  Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real “intelligence” work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ...”

77.  In paragraph 30 of the report it is stressed that “the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraph 75, it is added that:

“75.  The need for unprecedented permissions, according to our sources, arose directly from the CIA’s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades.

...

83.  Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA’s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO).

....”

78.  In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “black sites” for high value detainees. This part of the document reads, in so far as relevant, as follows:

“112.  Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.

...

115.  The bilaterals at the top of this range are classified, highly guarded mandates for ‘deep’ forms of cooperation that afford – for example – ‘infrastructure’, ‘material support and / or ‘operational security’ to the CIA’s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘host nation’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country’s territory.

116.  The classified ‘host nation’ arrangements made to accommodate CIA ‘black sites’ in Council of Europe member states fall into the last of these categories.

117.  The CIA brokered ‘operating agreements’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference.

118.  We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected.

119.  However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe.

120.  These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative.”

79.  Paragraphs 128-133 explain the US’s choice of European partners. This part of the report reads, in so far as relevant, as follows:

“128.  For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD programme should remain limited in size. Thus a “second European site” was sought to which the CIA could transfer its detainees with “no major logistical overhaul”. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA’s Counterterrorist Centre remarked about the location of the proposed detention facility, “our guys were familiar with the area”.

129.  Our sources on both sides of the agreement – in Romania and the United States – emphasised the importance of both trust and national interest as factors underpinning their negotiations. Military assistance – reflected since in the Agreement of December 2005 – also significantly influenced the decision to provide facilities and resources, as one American source reflected:

“The bilateral arrangements were built on two things: personal relationships and material investment. If your men on the ground have a very good personal relationship with the men in the partner service; that means a lot. And it also means a lot if the Romanians are gonna get their runways improved, new barracks built and new military hardware; that means a lot.”

130.  Romania was developed into a site to which more detainees were transferred only as the HVD programme expanded. I understand that the Romanian “black site” was incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations.

131.  Asked to provide names of those held in Romania, a senior official in the CIA’s Counterterrorism Centre, who was directly involved in operating the programme, said: “Look we don’t talk about names, okay. We’ve got a target range that we know less about. We’re acting on their intell[igence] value when we’re less certain.”

132.  Our sources told us that some of the targets in this “lower” HVD category had in fact been identified, and sometimes even apprehended, by a foreign intelligence service before they were made available to the CIA. Upon our strict assurance of anonymity, one CIA case officer was willing to describe limited details of a scenario in which a detainee had been “offered to us by our liaisons” and was later transferred to Romania. ...”

80.  Paragraphs 201-210 describe the cooperation between the US and Romanian intelligence services. The relevant passages read as follows:

“167.  In Romania, after the December 1989 Revolution and the dismantling of the repressive Securitate in 1990, the reforms of the intelligence services were focussed, understandably, on preventing the politicisation and abuse of internal state security structures. Similarly, much of the subsequent discussion around democratic oversight in the country has looked at ways of controlling “institutional actors and leading political figures with authority over the security and intelligence domain who disregard the legal stipulations regarding political neutrality.”

202.  As I have analysed Romania’s complex array of different agencies and sub-structures that collect intelligence for the state, I have realised that preserving political neutrality is merely one of a variety of competing considerations that affect the objectivity and effectiveness of their accountability structures. In the context of my inquiry, it seems to me that while Romania has made at least superficial efforts to rid its civilian intelligence services of the scourges of their Securitate past, its oversight mechanisms do not go far enough to prevent the exercise of what could be called “unitary executive authority” – on the part of the President – over military intelligence services and the wider defence community.

203.  This analysis conforms to the testimony of our Romanian sources, who said that the Americans chose to work with the military intelligence services because the military “cover” afforded the CIA flexible deployment options and guarantees of secrecy under the NATO framework. As the following comparison shows, there are substantial disparities between the respective monitoring mechanisms in the civilian and military spheres.

204.  First, in the civilian sphere, Romania’s two main agencies of the post-Communist era, the Romanian [Domestic] Intelligence Service (Serviciul român de informații, or SRI) and the Foreign Intelligence Service (Serviciul de informații externe, or SIE) were created under specific laws and a multi-layered oversight structure, which purport to immunise them from manipulation along party-political lines. The SRI and the SIE operate independently of government and are not subordinated to the incumbent executive. They are each subjected to parliamentary scrutiny through dedicated Special Parliamentary Committees. The Supreme Council of National Defence (Consiliul Suprem de Apărare a Țării, or CSAT), an autonomous administrative body chaired by the non-partisan Office of the President, organises and continually monitors the activities of the SRI and the SIE, in line with its mandate to co-ordinate the overall national security and defence of the country. As such, the possibilities for a handful of people at the heart of government to use the SRI or the SIE to pursue their own personal, political or strategic agenda are exceedingly narrow.

205.  In contrast, intelligence gathering in the military sphere is a competence formally overseen by the Ministry of National Defence, through its General Directorate for Defence Intelligence Direcția Generală de Informații a Apărării, or DGIA). What little parliamentary scrutiny of defence intelligence is supposed to exist certainly does not apply to its organisational, planning or operational aspects. On the contrary, strict compatibility with NATO structures, insisted upon as a criteria for NATO accession, means that the majority of Romanian military intelligence activities are kept secret from all but those who “need to know”.

206.  According to our sources, the relevant sub-unit of the DGIA that worked with the CIA on its clandestine operations was the Directorate for Military Intelligence and Representation (Direcția Informații și Reprezentare Militară, or DIRM), also known as the “J2” Unit. This unit was not involved in transporting, holding or interrogating any detainees – since these were tasks performed solely by the Americans – but, according to one Romanian officer, the “J2” officers “co-operated and adjusted” to accommodate the CIA personnel’s needs.

207.  As part of a wider restructuring of the DGIA in 2003, the “J2” unit increased in scope and importance at a very strategic moment in Romania’s co-operation with the United States, just as American forces were deploying into the country in large numbers to launch their aerial missions into Iraq for Operation Iraqi Freedom. The place at which these US forces were stationed, the 86th Air Force Base at Mihail Kogalniceanu Airfield, became the most significant point in the country for a whole range of collaborative activities in a “partnership” between Romanian and American personnel.

208.  A noteworthy aspect of this partnership was that everything was carried out under the NATO framework. The deployment at MK Airfield in February 2003 was authorised in a Memorandum of Understanding signed by President Ion Iliescu in late 2002, in which the terms of NATO-SOFA and the bilateral SOFA-Supplemental were expressly referenced. “NATO concepts” were applied to the deployment, including MK’s designation as an APOD / APOE, and the phase being referred to as “regrouping.” Most important of all, a Joint Operations Centre was established in which American and Romanian personnel “from each and every branch” of their respective armed forces and services worked together side-by-side throughout the Operation, sharing operational knowledge in strict accordance with the NATO Security Policy.

209.  Members of the Directorate for Military Intelligence, the “J2” Unit, participated in the Joint Operations Centre, which – as our American sources confirmed – also received “visits” from operatives of the CIA’s Counterterrorist Centre (CTC) between February and June 2003. While the whole four-month period of Operation Iraqi Freedom at MK Airfield was characterised as “a military activity in support of a military operation,” the relationships formed and strengthened between members of the respective intelligence services – both individually and collectively – were just as indispensable in the broader context of the “war on terror.” The Operation was construed as a welcome “dry-run” for Romania in NATO and for potential future bilateral actions between the partners.

210.  Continuity in the evolving relationship between American and Romanian services can perhaps best be illustrated by highlighting the role of the then Head of the Directorate of Military Intelligence and Representation (Șef al Direcției de Informații și Reprezentare Militară), Sergiu Tudor Medar. General- Lieutenant Medar served in the United States for seven years in the 1990s, heading the Office of the Romanian Defense Attache in Washington, DC until 1999. Between 2000 and 2003 he headed the original incarnation of the Directorate of Military Intelligence in the DGIA; then from 2003 until the end of 2005 he was Head of the restructured “J2” Unit. General-Lieutenant Medar was a prescient choice for the CIA as a liaison for secret detention operations in Romania: not only was he trusted beyond doubt in both US and NATO military circles; he was also, as the following quote attests, aware of the potential perils of partnering with military intelligence to achieve an essentially political goal:

“The civilian leadership’s tendency in using its control over intelligence for political purposes is likely to be even bigger than its desire to keep the military component under its firm control. Some equilibrium must be established between the professional experience of the Military Intelligence Service and the authority of the civilian political leadership.”

81.  Paragraphs 211-218 contain conclusions as to who were the Romanian State officials responsible for authorising Romania’s role in the CIA’s HVD programme. They read, in their relevant part:

“211.  During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania. Based upon these discussions, my inquiry has concluded that the following individual office-holders knew about, authorised and stand accountable for Romania’s role in the CIA’s operation of “out-of-theatre” secret detention facilities on Romanian territory, from 2003 to 2005: the former President of Romania (up to 20 December 2004), Ion ILIESCU, the current President of Romania (20 December 2004 onwards), Traian BASESCU, the Presidential Advisor on National Security (until 20 December 2004), Ioan TALPES, the Minister of National Defence (Ministerial oversight up to 20 December 2004), Ioan Mircea PASCU, and the Head of Directorate for Military Intelligence, Sergiu Tudor MEDAR.

212.  Collaborating with the CIA in this very small circle of trust, Romania’s leadership in the fields of national security and military intelligence effectively short-circuited the classic mechanisms of democratic accountability. Both of the political principals, President Iliescu and National Security Advisor Talpes, sat on (and most often chaired) the CSAT - the Supreme Council of National Defence – throughout this period, yet they withheld the CIA “partnership” from the other members of that body who did not have a “need to know.” This criterion excluded the majority of civilian office-holders in the Romanian Government from complicity at the time. Similarly, the Directors of the respective civilian intelligence agencies, the SRI and the SIE, were not briefed about the operational details and were thus granted “plausible deniability”.

213.  We were told that the confidants on the military side, Defence Minister Pascu and General-Lieutenant Medar, had concealed important operational activities from senior figures in the Army and powerful structures to which they were subordinated. According to our sources, “co-operation with America in the context of the NATO framework” was used as a general smokescreen behind which to hide the operations of the CIA programme.

214.  Sergiu Medar’s role here merits special attention. Of the four named offices of state in which individuals held knowledge of the CIA’s programme, Medar was the only office-holder who “crossed over” from the Presidency of Ion Iliescu to the Presidency of Traian Basescu. Medar remained Head of the “J2" Unit for another year after the handover of power to President Basescu on 20 December 2004; indeed, it appears that he stayed in position right through to the clear-out of the European “black sites”, which we believe to have occurred in November or early December 2005.

215.  It is also worth commenting on General-Lieutenant Medar’s close relationship with the current President Traian Basescu. When Basescu assumed office, in December 2004, his very first Presidential Decree granted Sergiu Tudor Medar the decorated status of Three-Star General. In 2005 Basescu appointed Medar as his National Security Advisor and, in 2006, selected him as the first Head of the consolidated National Intelligence Directorate. Relationships of trust, loyalty and familiarity are vital to the preservation of secrecy, as the NATO Security Policy makes clear.

216.  Ioan Talpes, the then Presidential Advisor on National Security (Consilierul prezidențial pentru securitate națională), was also an instrumental figure in the CIA programme from its inception. According to our sources, Talpes guided President Iliescu’s every decision on issues of NATO harmonisation and bilateral relations with the United States; it has even been suggested that Talpes was the one who initiated the idea of making facilities on Romanian soil available to US agencies for activities in pursuit of its “war on terror.” After December 2004, although Talpes no longer acted as the Presidential Advisor on National Security, he quickly become Chair of the Senate Committee on Defence, Public Order and National Security, which meant that he exercised at least a theoretical degree of “parliamentary oversight” over his own successor in the Advisor role.

217.  Several of our Romanian sources commented that they felt proud to have been able to assist the United States in detaining “high-value” terrorists – not only as a gesture of pro-American sentiment, but also because they thought it was “in the best interests of Romania.”

218.  Those involved in the programme further recounted fond tales of how the US has recognised their individual contributions over the years: some Romanian officials were invited to CIA Headquarters at Langley, Virginia where they received awards; most got to meet key figures in the Bush Administration, at home and abroad; and at least one high-level group of delegates from Bucharest accepted personal thanks from President Bush in the Oval Office.”

82.  In paragraphs 219-226 the 2007 Marty Report describes “The anatomy of CIA secret transfers and detention in Romania”. Those paragraphs read, in so far as relevant, as follows:

“a.  Creating a secure area for CIA transfers and detentions

219.  When the United States Government made its approach for the establishment of a “black site” in Romania – offering formidable US support for Romania’s full accession into the NATO Alliance as the “biggest prize” in exchange – it relied heavily upon its key liaisons in the country to make the case to then President Iliescu. As one high-level Romanian official who was actually involved in the negotiations told us, it was “proposed to the President that we should provide full protection for the United States from an intelligence angle. Nobody from the Romanian side should interfere in these [CIA] activities”.

220.  In line with its staunch support under the NATO framework, Romania entered a bilateral “technical agreement” with the intention of giving the US the full extent of the permissions and protections it sought. According to one of our sources with knowledge of the arrangement, there was an “... order [given] to our [military] intelligence services, on behalf of the President, to provide the CIA with all the facilities they required and to protect their operations in whichever way they requested ...”.

221.  From extensive discussions with our Romanian sources, I understand that the manner of protection requested by the CIA was for Romanian military intelligence officers on the ground to create an area or “zone” in which the CIA’s physical security and secrecy would be impenetrably protected, even from perceived intrusion by their counterparts in the Romanian services. A source in Romanian military intelligence described the notion of a “secure area” as follows:

“We were the ones responsible for proper security for the CIA operations. It is not possible for we Romanians to enter or to see inside the area. Americans can come and go, no interference, no restriction – anything is possible. It is normal, because they are our allies, the Americans, yes.”

222.  The precise location and character of the “black site” were not, to the best of my knowledge, stipulated in the original classified bilateral arrangements between Romania and the United States. Our team discussed those questions with multiple sources and we believe that to name a location explicitly would go beyond what it is possible to confirm from the Romanian side. One senior source in military intelligence objected to the notion that anyone but the Americans would “need to know” this information:

“But I tell you that our Romanian officers do not know what happened inside those areas, because we sealed it off and we had control. There were Americans operating there free from interference – only they saw, only they heard – about the prisoners.”

223.  Nonetheless we were able to confirm the approximate borderlines of the CIA’s “outer perimeter” for its secure area in Romania. We were assisted by a source in military intelligence, a detailed map and an annex to the Access Agreement of 2005, in which reference is made to “facilities” generally and to one relevant “manoeuvre area” in particular. Our source used his right index finger to draw an invisible elliptical perimeter on the map, which encompassed a vertical column between the towns of Tulcea (to the north) and Constanta (to the south), as well as an area extending approximately 50 kilometers inland (to the west) and in the opposite direction to the Black Sea coast (to the east). Referring to the role of the Romanian “J2” Unit in supporting bilateral arrangements with the CIA, our source said: “We have to seal [this] entire area and limit access there.”

224.  The secure area in question includes several current and former military installations, including all of those facilities named in the Access Agreement of 2005, which have been used by the United States under a “special regime of access” since late 2001. Nonetheless, the main reason that led one of our CIA sources to say that his “guys were familiar with the area” was its inclusion of the landing point at which scores of civil and military flights carrying American service personnel have landed throughout the “war on terror”: Mihail Kogalniceanu Airfield.

225.  In the light of all that I have said above about MK Airfield, I only wish to draw attention to one further factor that has made it a venue so conducive to “partnership” with the CIA: its “dual” military-civilian character. Military personnel worked routinely with civilian Air Traffic Controllers in processing both civil and military flights at the Airfield – each according to the applicable aviation rules. The system used at MK Airfield bears great similarities, albeit on a much smaller scale, to the system used at Kabul Airport (OAKB), which became such a hub in the context of coalition military activities in Afghanistan and simultaneously a destination or departure point for multiple known renditions of CIA detainees on board civilian aircraft since the start of the “war on terror”. (...)

83.  Paragraphs 227-230 refer to the persistent cover-up with regard to the transfer of detainees into Romania:

227.  Our efforts to obtain accurate actual flight records pertaining to the movements of aircraft associated with the CIA in Romania were characterised by obfuscation, inconsistency and genuine confusion. (...)

228.  Specifically I hold three principal concerns with the approach of the Romanian authorities towards the repeated allegations of secret detentions in Romania, and towards my inquiry in particular. In summary, my concerns are: far-reaching and unexplained inconsistencies in Romanian flight and airport data; the responsive and defensive posturing of the national parliamentary inquiry, which stopped short of genuine inquisitiveness; and the insistence of Romania on a position of sweeping, categorical denial of all the allegations, in the process overlooking extensive evidence to the contrary from valuable and credible sources.

229.  First I was confounded by the clear inconsistencies in the flight data provided to my inquiry from multiple different Romanian sources. In my analysis I have considered data submitted directly from the Romanian Civil Aeronautical Authority (RCAA), data provided by the Romanian Senate Committee, and data gathered independently by our team in the course of its investigations. I have compared the data from these Romanian sources with the records maintained by Eurocontrol, comprehensive aeronautical “data strings” generated by the international flight planning system, and my complete Marty Database. The disagreement between these sources is too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destination by Pilots-in-Command, which were communicated to one authority but not to another. There presently exists no truthful account of detainee transfer flights into Romania, and the reason for this situation is that the Romanian authorities probably do not want the truth to come out.

230.  I found it especially disappointing that the Senate Inquiry Committee chose to interpret its mandate in the rather restrictive terms of defending Romania against what it called “serious accusations against our country, based solely on ‘indications’, ‘opinions’, ‘probabilities’, ‘extrapolations’ [and] ‘logical deductions’”. In particular, the Committee’s conclusions are not framed as coherent findings based on objective factfinding, but rather as “clear responses to the specific questions raised by Mr Dick Marty,” referring to both my 2006 report and subsequent correspondence. Accordingly the categorical nature of the Committee’s “General Conclusions,” “Conclusions based on field investigations and site visits” and “Final Conclusions” cannot be sustained. The Committee’s work can thus be seen as an exercise in denial and rebuttal, without impartial consideration of the evidence. Particularly in the light of the material and testimony I have received from sources in Romania, the Committee does not appear to have engaged in a credible and comprehensive inquiry.

(γ)  The 2011 Marty Report

84.  On 16 September 2011 the Parliamentary Assembly of the Council of Europe adopted the third report prepared by Senator Marty, entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (“the 2011 Marty Report”), which describes the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe’s member states.

Paragraph 41 relates to Romania. Its relevant part reads:

“41.  In Romania, parliament has also conducted no more than a superficial inquiry, of which a critical presentation was already given in my 2007 report. Unfortunately, there has been nothing to add since then.”

(c)  European Parliament

(i)  “The Fava inquiry”

85.  On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.

It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.

86.  The report, deploring the passivity of some EU Member States in the face of illegal CIA operations, as well as the lack of co-operation from the EU Council of Ministers was approved with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.

87.  As regards Romania, the report noted that it cannot exclude, based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definitive evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil.

In respect of the Romanian Parliament inquiry, the report concluded that the inquiry committee was entirely secret except for its conclusions and that the conclusions drawn in the Romanian inquiry committee’s report appear premature and superficial. It also stated that:

“160.  Regrets the lack of control of the Gulfstream aircraft with Registration Number N478GS that suffered an accident on 6 December 2004 when landing in Bucharest; recalls that the aircraft took off from Bagram Air Base in Afghanistan, and that its seven passengers disappeared following the accident; appreciates, however, the good cooperation of the Romanian authorities in handing over the report on the accident to the Temporary Committee;

161.  Is deeply concerned to see that Romanian authorities did not initiate an official investigation process, as any democratic country should have done, into the case of a passenger on the aircraft Gulfstream N478GS , who was found carrying a Beretta 9 mm Parabellum pistol with ammunition;

162.  Expresses serious concern about the 21 stopovers made by CIA-operated aircraft at Romanian airports, which on many occasions came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Romania of aircraft which have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri, Binyam Mohammed and Abu Omar and for the expulsion of Ahmed Agiza and Mohammed El Zari; is particularly concerned that, of the flights referred to, two originated from or were destined for Guantánamo; strongly encourages the Romanian authorities further to investigate those flights;

...”

88.  The report censored the lack of cooperation of many member States and of the Council of the EU towards the Temporary Committee. The national governments specifically criticised for their unwillingness to cooperate with Parliament’s investigations were those of Austria, Italy, Poland, Portugal and the United Kingdom.

(ii)  The EU Parliament February 2007 Resolution

89.  On 14 February 2007, following the examination of the Fava Inquiry report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) (“the EU February 2007 Resolution”). It reads, in so far as relevant, as follows:

“The European Parliament,

...

9.  Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;

...

13.  Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;

14.  Believes that the serious lack of concrete answers to the questions raised by victims, nongovernmental organisations (NGOs), the media and parliamentarians has only served to strengthen the validity of already well-documented allegations;

...

36.  Recalls that the programme of extraordinary rendition is an extra-judicial practice which contravenes established international human rights standards and whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture;

...

39.  Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;

...

43.  Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);

44.  Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;

...

48.  Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;

...

ROMANIA

159.  Welcomes the excellent hospitality and good cooperation extended by the Romanian authorities to the Temporary Committee, including meetings with members of the Romanian Government, as well as the establishment of an ad hoc inquiry committee of the Romanian Senate;

160.  Notes, however, the reluctance on the part of the competent Romanian authorities to investigate thoroughly the existence of secret detention facilities on its territory;

161.  Regrets that the report issued by the Romanian inquiry committee was entirely secret except for its conclusions, included in Chapter 7, categorically denying the possibility that secret detention facilities could be hosted on Romanian soil; regrets that the Romanian inquiry committee heard no testimony from journalists, NGOs, or officials working at airports, and has not yet provided the Temporary Committee with the report contrary to its commitment to do so; regrets that taking these elements into consideration, the conclusions drawn in the Romanian inquiry committee’s report appear premature and superficial; takes note, however, of the intention expressed by the Chairwoman of the inquiry committee to the Temporary Committee delegation to consider the conclusions provisional;

162.  Regrets the lack of control of the Gulfstream aircraft with Registration Number N478GS that suffered an accident on 6 December 2004 when landing in Bucharest; recalls that the aircraft took off from Bagram Air Base in Afghanistan, and that its seven passengers disappeared following the accident; appreciates, however, the good cooperation of the Romanian authorities in handing over the accident report to the Temporary Committee;

163.  Is deeply concerned to see that the Romanian authorities did not initiate an official investigation process into the case of a passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with ammunition;

164.  Notes the 21 stopovers made by CIA-operated aircraft at Romanian airports, and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Romania of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri, Binyam Mohammed and Abu Omar and for the expulsion of Ahmed Agiza and Mohammed El Zari; is particularly concerned that, of the flights referred to, two originated from or were destined for Guantánamo; strongly encourages the Romanian authorities further to investigate those flights;

165.  Is concerned about the doubts expressed in regard to the control exercised by the Romanian authorities over US activities at Kogalniceanu airport;

166.  Cannot exclude, based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definitive evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil;

...”

(iii)  The 2011 Resolution

90.  On 9 June 2011 the European Parliament adopted its resolution on Guantánamo: imminent death penalty decision (doc. B70375/2011) relating to the applicant. It reads:

“The European Parliament,

-  having regard to its previous resolutions on the death penalty and notably those of 7 October 2010 on the World Day against the death penalty and of 10 July 2008 on the death penalty, particularly the case of Troy Davis, on Guantánamo, notably those or 13 June 2006 on the situation of prisoners at Guantánamo and of 10 March 2004 on the Guantánamo prisoners right to a fair trial, as well as those on alleged CIA flights and prisons on EU soil,

-  having regard to the Joint study on global practices in relation to secret detention in the context of countering terrorism of 19 February 2010 by the UN Special Rapporteur on Torture, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism and the Working Groups on Arbitrary Detention and Enforced or Involuntary Disappearances,

-  having regard to Rule 122(5) of its Rules of Procedure,

A.  whereas in response to the attacks of 11 September 2001 the United States responded by developing a global ‘war’ framework under which its interpretation of the laws of war would apply to the exclusion of international human rights law,

B.  whereas, in consequence, the United States administration has resorted to illegal practices under international law such as torture and other forms of ill-treatment, enforced disappearances, secret prisons, indefinite detention outside the criminal justice system and unfair trials by military commission, established by President Bush by way of a Military Order on 13 November 2001,

....

F.  whereas Abd al-Rahim al-Nashiri, a Saudi national, will be the first case to be tried in front of a military commission since President Obama ordered those trials to resume and whereas the government is seeking the death penalty on charges that Mr Al-Nashiri had a leading role in the attack on the USS Cole in Yemen on 12 October 2000 and on the French oil tanker MV Limburg on 6 October 2002,

G.  whereas the option of the death penalty has to be approved by the ‘convening authority’of the military commissions, Navy Vice Admiral Bruce MacDonald, who is prepared to receive written submissions until 30 June,

H.  whereas Mr. Al-Nashiri was arrested in Dubai, United Arab Emirates, by local security forces in October 2002, handed over into US custody one month later and held in Secret custody at undisclosed locations by the USA’s central intelligence agency (CIA) for almost four years, before being transferred to military custody at Guantánamo in September 2006,

I.  whereas during the period of nearly 4 years in CIA custody - according to public sources - he was held incommunicado, in solitary confinement, was subjected to torture, including by ‘water-boarding’, as well as other cruel, inhuman or degrading treatment, such as shackling, hooding and nudity as well as to a number of ‘unauthorized’ techniques, including being threatened with a handgun and a electric power drill, ‘potentially injurious stress positions’ and the use of a stiff brush [used in bathing] that was intended to induce pain", and standing on al-Nashiri’s shackles, which resulted in cuts and bruises,

J.  whereas EU Member States have outlawed the death penalty on their territory, while the European Union has the abolition of the death penalty as a key objective and has adopted EU guidelines and supported initiatives on the international level for a moratorium on capital punishment,

K.  whereas international human rights law, while recognizing that some countries retain the death penalty, prohibits the imposition and execution of a death sentence based on a trial that has not met the highest standards of fairness,

L.  whereas in 2007 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms called on the United States to disestablish the military commissions and in 2009 the UN Special Rapporteur on extrajudicial, summary or arbitrary executions urged the US not to conduct any capital prosecutions before military commissions,

M.  whereas Mr Al-Nashiri has alleged that he was held in a secret CIA detention centre in Poland between 2002 and 2003 for several months and tortured during that time, whereas on 10 May 2011 he appealed to the European Court of Human Rights supported by several human rights organizations, requesting that the Polish Government intervene with the US authorities to try to stop the military commission prosecution from seeking the death penalty,

N.  whereas according to the UN Special Rapporteur on Torture, Manfred Novak new information seems to confirm that Abd al-Rahim al Nashiri was also for some time between 2003 and 2005 held in a small jail in Bucharest, Romania,

...

1.  Reiterates its condemnation of the continuing violations of international humanitarian and human rights law by the United States government in upholding its practice of indefinite detention outside the criminal justice system and unfair trials by military commission;

2.  Restates its long-standing opposition to the use of torture and ill-treatment as well as to the death penalty in all cases and under all circumstances and strongly criticizes the fact that no-one has been brought to justice for human rights violations to which Abd al-Rahim al-Nashiri and other prisoners held under the CIA secret program were subjected, either in Europe or in the United States;

3.  Recognizes that Abd al-Rahim al-Nashiri has been accused of serious crimes while however expressing its deep concern that the US authorities in his case have violated international law for the last 9 years;

4.  Calls on the ‘convening authority’ not to apply the death penalty on Abd al‑Rahim al-Nashiri, on the grounds that the military commission trials do not meet the standards internationally required for the application of the death sentence;

5.  Appeals to the particular responsibility of the Polish and the Romanian Governments to make thoroughly inquiries into all indications relating to secret prisons and cases of extraordinary rendition on Polish soil and to insist with the US Government that the death penalty should on no account be applied to Mr Al-Nashiri;

6.  Calls on the High Representative Catherine Ashton and the Commission to actively support the Polish Government in any such move;

7.  Insists that Mr Al-Nashiri and all other detainees in US custody should be charged in due time and tried according to international standards of rule of law or else be released; underlines, in this context, that the same standards of fair trial should be applied to all, regardless of national origin, descent or belief;

8.  Calls on the Council and Commission to establish a mechanism for an independent investigation into any allegation of secret detention and ‘extraordinary rendition’ with a view to bringing the perpetrators to justice;

...”

(iv)  The 2012 Resolution

91.  On 11 September 2012 the European Parliament adopted its follow‑up resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA. It reads:

“The European Parliament,

-  having regard to the Treaty on European Union (TEU), in particular Articles 2, 3, 4, 6, 7 and 21 thereof,

-  having regard to the Charter of Fundamental Rights of the European Union, in particular Articles 1, 2, 3, 4, 18 and 19 thereof,

-  having regard to the European Convention on Human Rights and the protocols thereto,

–  having regard to the relevant UN human rights instruments, in particular the International Covenant on Civil and Political Rights of 16 December 1966, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 and the relevant protocols thereto, and the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006,

–  having regard to Article 5 of the North Atlantic Treaty of 1949,

...

–  having regard to the ‘Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’(2) and to the Commission communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 20 April 2010 on ‘Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan Implementing the Stockholm Programme’ ...,

–  having regard to the Guidelines to EU Policy Towards Third countries on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to the EU Guidelines on the Death Penalty,

–  having regard to the Declaration of Brussels of 1 October 2010, adopted at the 6th Conference of the Parliamentary Committees for the Oversight of Intelligence and Security Services of the European Union Member States,

–  having regard to the UN Joint study on global practices in relation to secret detention in the context of countering terrorism, prepared by: the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention, represented by its Vice-Chair, Shaheen Sardar Ali; and the Working Group on Enforced and Involuntary Disappearances, represented by its Chair, Jeremy Sarkin,

–  having regard to the UN Human Rights Council Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, focusing on commissions of inquiry in response to patterns or practices of torture or other forms of ill-treatment,

–  having regard to the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, entitled ‘Compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight’,

–  having regard to the contributions from the Council of Europe, in particular the work of the former Commissioner for Human Rights, Thomas Hammarberg, and of the European Committee for the Prevention of Torture (CPT), as well as to the relevant resolutions of the Parliamentary Assembly of the Council of Europe, in particular those entitled ‘Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states’ and ‘Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report’, and to the report of the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights entitled ‘Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations’,

–  having regard to the European Court of Human Rights cases al-Nashiri v. Poland, Abu Zubaydah v. Lithuania, Abu Zubaydah v. Poland and el-Masri v. ‘the former Yugoslav Republic of Macedonia’, which was heard by the Grand Chamber on 16 May 2012,

–  having regard to its resolution of 25 November 2009 on the Commission communication to Parliament and the Council entitled ‘An area of freedom, security and justice serving the citizen – Stockholm programme’,

–  having regard to its resolutions of 14 February 2007 and 19 February 2009 on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners,

–  having regard to its resolutions on Guantánamo, in particular those of 9 June 2011 on ‘Guantánamo: imminent death penalty decision’, of 4 February 2009 on the return and resettlement of the Guantánamo detention facility inmates and of 13 June 2006 on the situation of prisoners at Guantánamo, and to its recommendation to the Council of 10 March 2004 on the Guantánamo detainees’ right to a fair trial,

–  having regard to its resolution of 15 December 2010 on ‘the situation of fundamental rights in the European Union (2009) – effective implementation after the entry into force of the Treaty of Lisbon’,

–  having regard to its resolution of 14 December 2011 on ‘the EU counter-terrorism policy: main achievement and future challenges’,

–  having regard to the speech given by Jacques Barrot, Vice-President of the Commission, in Strasbourg on 17 September 2008,

–  having regard to the statements made by the Commission on the need for the Member States concerned to conduct investigations into allegations of involvement in the CIA rendition and secret detention programme, and to the documents communicated to the rapporteur by the Commission, including four letters sent to Poland, four to Romania and two to Lithuania between 2007 and 2010,

–  having regard to the Commission communication to the Council and Parliament of 15 October 2003 on ‘Article 7 of the Treaty on European Union: Respect for and promotion of values on which the Union is based’ ...,

–  having regard to the letter of 29 November 2005 from the EU Presidency to US Secretary of State Condoleezza Rice, requesting any ‘clarification the US can give about these reports [on the alleged detention or transportation of terrorists suspects in or through some EU Member States] in the hope that this will allay parliamentary and public concerns’,

–  having regard to the 2748th/2749th meeting of the General Affairs and External Relations Council of 15 September 2006, which debated the item ‘Fight against terrorism – Secret detention facilities’,

–  having regard to the EU statement made on 7 March 2011 at the 16th session of the Human Rights Council regarding the aforementioned UN joint study on secret detention,

–  having regard to the article entitled ‘Counter-terrorism and human rights’ by Villy Sovndal, Gilles de Kerchove and Ben Emmerson, published in the 19 March 2012 issue of European Voice ,

–  having regard to US Secretary of State Condoleezza Rice’s reply of 5 December 2005 to the EU Presidency’s letter of 29 November 2005, stating that ‘[...] rendition is a vital tool in combating terrorism. Its use is not unique to the United States, or to the current administration’, denying allegations of direct US involvement in torture and emphasising that the ‘purpose’ of rendition was not that the person rendered be tortured, and to US Secretary of State Condoleezza Rice’s statements confirming that ‘we [the United States] are respecting the sovereignty of our partners’,

–  having regard to former US President George W. Bush’s acknowledgement, in his speech from the East Room of the White House of 6 September 2006, of the existence of a CIA-led programme of rendition and secret detention, including overseas operations,

–  having regard to George W. Bush’s memoirs, which were published on 9 November 2010,

–  having regard to the unclassified version, released in August 2009, of CIA Inspector General John Helgerson’s 2004 report on the CIA’s Bush-era interrogation operations,

–  having regard to the 2007 report of the International Committee of the Red Cross on the treatment of 14 high-value detainees in CIA custody, which became publicly accessible in 2009,

–  having regard to the various initiatives at national level to account for Member States’ involvement in the CIA rendition and secret detention programme, including the ongoing inquiry in Denmark and past inquiries in Sweden, the ongoing criminal investigations in Poland and the United Kingdom, past criminal proceedings in Italy, Germany, Lithuania, Portugal and Spain, the all-party group parliamentary investigation in the United Kingdom and past parliamentary investigations in Germany, Lithuania, Poland and Romania,

–  having regard to the two-year Portuguese judicial inquiry, which was suddenly closed in 2009,

–  having regard to the conclusions of the national inquiries already conducted in some Member States,

–  having regard to the numerous media reports and acts of investigative journalism, in particular – but not limited to – the 2005 and 2009 ABC News reports and the 2005 Washington Post reports, without which the acts of rendition and detention would have remained truly secret,

–  having regard to the research and investigations carried out, and the reports produced, by independent researchers, civil society organisations and national and international non-governmental organisations since 2005, most notably by Human Rights Watch, Amnesty International and Reprieve,

–  having regard to the hearings of its Committee on Civil Liberties, Justice and Home Affairs (LIBE) held on 27 March 2012 and of its Subcommittee on Human Rights held on 12 April 2012, the LIBE delegation’s visit to Lithuania of 25‑27 April 2012, the rapporteur’s visit to Poland of 16 May 2012 and all the written and oral contributions received by the rapporteur,

–  having regard to the joint request for flight data submitted to the Director of Eurocontrol by the Chair of the Committee on Civil Liberties, Justice and Home Affairs and the rapporteur on 16 April 2012 and to the comprehensive response received from Eurocontrol on 26 April 2012,

–  having regard to the DG IPOL note entitled ‘The results of the inquiries into the CIA’s programme of extraordinary rendition and secret prisons in European states in light of the new legal framework following the Lisbon Treaty’,

–  having regard to Rules 48 and 50 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Foreign Affairs (...),

A.  whereas Parliament has condemned the US-led CIA rendition and secret detention programme involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance; whereas its Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (hereinafter the ‘Temporary Committee’) has documented the use of European airspace and territory by the CIA, and whereas Parliament has since repeated its demand for full investigations into the collaboration of national governments and agencies with the CIA programme;

B.  whereas Parliament has repeatedly called for the fight against terrorism fully to respect human dignity, human rights and fundamental freedoms, including in the context of international cooperation in the field, on the basis of the European Convention of Human Rights, the EU Charter of Fundamental Rights and national constitutions and fundamental rights legislation, and whereas it reiterated this call most recently in its report on EU counter-terrorism policy, in which it also stated that respect for human rights is a precondition for ensuring the policy’s effectiveness;

C.  whereas Parliament has repeatedly and strongly condemned illegal practices including ‘extraordinary rendition’, abduction, detention without trial, disappearance, secret prisons and torture, and has demanded full investigations into the alleged degree of involvement of some Member States in collaboration with US authorities, notably the CIA, including involvement on EU territory;

D.  whereas the purpose of this resolution is to ‘follow up politically the proceedings of the Temporary Committee and to monitor the developments, and in particular, in the event that no appropriate action has been taken by the Council and/or the Commission, to determine whether there is a clear risk of a serious breach of the principles and values on which the European Union is based, and to recommend to it any resolution, taking as a basis Articles 6 and 7 of the Treaty on European Union, which may prove necessary in this context’;

E.  whereas the EU is founded on a commitment to democracy, the rule of law, human rights and fundamental freedoms, respect for human dignity and international law, not only in its internal policies, but also in its external dimension; whereas the EU’s commitment to human rights, reinforced by the entry into force of the EU Charter of Fundamental Rights and the process of accession to the European Convention on Human Rights, must be reflected in all policy areas in order to make EU human rights policy effective and credible;

F.  whereas a proper accountability process is essential in order to preserve citizens’ trust in the democratic institutions of the EU, to protect and promote human rights effectively in the EU’s internal and external policies, and to ensure legitimate and effective security policies based on the rule of law;

G.  whereas no Member State has so far wholly fulfilled its obligations to protect, preserve and respect international human rights and prevent violations thereof;

H.  whereas the instruments governing the EU’s Common Foreign and Security Policy (CFSP) include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the two Optional Protocols thereto, the Convention Against Torture (CAT) and the Optional Protocol thereto, the European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which together not only mandate an absolute ban on torture but also entail a positive obligation to investigate allegations of torture and provide remedies and reparation; whereas the guidelines to EU policy on torture provide the framework for the EU’s efforts ‘to prevent and eradicate torture and ill-treatment in all parts of the world’;

I.  whereas, in order to ensure the promotion of international law and respect for human rights, all association, trade and cooperation agreements contain human rights clauses, and whereas the EU also engages in political dialogues with third countries on the basis of human rights guidelines, which include combating the death penalty and torture; whereas, in the framework of the European Instrument for Democracy and Human Rights (EIDHR), the EU supports civil society organisations that fight torture and provide support for the rehabilitation of victims of torture;

J.  whereas secret detention, which is a form of enforced disappearance, may amount, if widely or systematically practised, to a crime against humanity; whereas states of emergency and the fight against terrorism constitute an enabling environment for secret detention;

K.  whereas, although the EU has demonstrated its commitment to avoiding collusion in torture through Council Regulation (EC) No 1236/2005, most recently amended in December 2011, which prohibits any export or import of goods that have no practical use other than for the purpose of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment, more work still needs to be done to ensure comprehensive coverage;

L.  whereas relying on diplomatic assurances alone to authorise the extradition or deportation of a person to a country where there are substantial grounds for believing that individuals would be in danger of being subjected to torture or ill-treatment is incompatible with the absolute prohibition of torture in international law, EU law and the national constitutions and laws of the Member States;

M.  whereas the Council admitted on 15 September 2006 that ‘the existence of secret detention facilities where detained persons are kept in a legal vacuum is not in conformity with international humanitarian law and international criminal law’, but has so far failed to recognise and condemn the involvement of Member States in the CIA programme, even though the use of European airspace and territory by the CIA has been acknowledged by the political and judicial authorities of Member States;

N.  whereas there are enduring human rights violations due to the CIA programme, as evidenced in particular by the ongoing administrative detention in Guantánamo Bay of Abu Zubaydah and Abd al-Rahim al-Nashiri, who have been granted victim status in the Polish criminal investigation into CIA secret prisons;

O.  whereas research by the UN, the Council of Europe, national and international media, investigative journalists and civil society has brought to light new, concrete information on the location of secret CIA detention sites in Europe, rendition flights through European airspace and the persons transported or detained;

P.  whereas the commission of illegal acts on EU territory may have developed in the context of NATO multilateral or bilateral agreements;

Q.  whereas national inquiries and international research prove that members of the North Atlantic Treaty Organisation (NATO) agreed to commit themselves to measures in the campaign against terrorism which enabled secret airline traffic and use of EU Member States’ territory in the CIA-led programme of rendition, indicating collective knowledge of the programme by Member States which are also members of NATO;

...

S.  whereas the 2011 Council of Europe report states that the data obtained from the Polish agencies in 2009 and 2010 ‘provide definite proof’ that seven CIA-associated aircraft landed in Poland, and whereas Polish media reported that charges had been brought against former Polish intelligence chiefs, and revealed possible contacts between intelligence officers and the Polish Government concerning the use of a CIA detention facility on Polish territory; whereas in 2011 Romanian investigative journalists sought to demonstrate the existence of a ‘black site’ in the Romanian national registry office for classified information, on the basis of information provided by former CIA employees; whereas the existence of this ‘black site’ has been denied by the Romanian authorities and was not demonstrated by the inquiry conducted by the Romanian parliament; whereas former Libyan dissidents have started legal proceedings against the UK for the direct involvement of MI6 in their own and their family members’ rendition, secret detention and torture;

...

V.  whereas research and court findings on the logistics involved in covering up these illegal operations, including dummy flight plans, civil and military aircraft classified as state flights and the use of private aviation companies to conduct CIA renditions, have further revealed the systematic nature and the extent of European involvement in the CIA programme; whereas an analysis of the new data provided by Eurocontrol supports in particular the argument that, in order to conceal the origin and destination of transfers of prisoners, contractors operating renditions missions switched from one plane to another mid-route;

W.  whereas the EU has developed internal security and counter-terrorism policies based on police and judicial cooperation and the promotion of intelligence-sharing; whereas these policies should be grounded in respect for fundamental rights and the rule of law and effective democratic parliamentary oversight of intelligence services;

X.  whereas, according to the CPT, ‘the interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman and degrading treatment’;

Y.  whereas EU-US relations are based on a strong partnership and cooperation in many fields, on the basis of common shared values of democracy, the rule of law and fundamental rights; whereas the EU and the US have strengthened their engagement in the fight against terrorism since the terrorist attacks of 11 September 2001, notably through the Joint Declaration on Counter-terrorism of 3 June 2010, but whereas it is necessary to ensure compliance in practice with declared commitments and to overcome divergences between EU and US policies in the fight against terrorism;

Z.  whereas in December 2011 the US authorities passed the National Defence Authorisation Act (NDAA), which codifies in law the indefinite detention of persons suspected of engaging in terrorist actions within the US and undermines the right to due process and a fair trial; whereas the scope of the NDAA is the subject of a legal challenge;

AA.  whereas, on 22 January 2009, President Obama signed three executive orders banning torture during interrogations, establishing an inter-agency task force to conduct a systematic review of detention policies and procedures and review all individual cases and ordering the closure of the Guantánamo Bay detention facility;

AB.  whereas, however, the Guantánamo Bay detention facility has yet to be closed on account of strong opposition from the US Congress; whereas, in order to hasten its closure, the US has called on EU Member States to host Guantánamo detainees; whereas the UN High Commissioner for Human Rights has expressed deep disappointment at the failure to close the Guantánamo Bay detention facility and at the entrenchment of a system of arbitrary detention;

AC.  whereas Guantánamo detainees are still subjected to trials by military tribunals, notably following the US President’s decision of 7 March 2011 to sign the executive order lifting a two-year freeze on new military trials and the law of 7 January 2012 barring transfers of Guantánamo detainees to the US for trial;

General

1.  Recalls that counter-terrorism strategies can be effective only if they are conducted in strict compliance with human rights obligations, in particular the right to due process;

2.  Reiterates that effective counter-terrorism measures and respect for human rights are not contradictory, but are complementary and mutually reinforcing aims; points out that respect for fundamental rights is an essential element in successful counter-terrorism policies;

3.  Highlights the extremely sensitive nature of anti-terrorism policies; believes that only genuine grounds of national security can justify secrecy; recalls, however, that in no circumstance does state secrecy take priority over inalienable fundamental rights and that therefore arguments based on state secrecy can never be employed to limit states’ legal obligations to investigate serious human rights violations; considers that definitions of classified information and state secrecy should not be overly broad and that abuses of state secrecy and national security constitute a serious obstacle to democratic scrutiny;

4.  Stresses that special procedures ought not to be applied to persons suspected of terrorism; points out that everyone must be able to benefit from all the guarantees included in the principle of a fair trial as laid down in Article 6 of the European Convention on Human Rights;

5.  Reiterates its condemnation of the practices of extraordinary rendition, secret prisons and torture, which are prohibited under domestic and international legislation stipulating respect for human rights and which breach inter alia the rights to liberty, security, humane treatment, freedom from torture, non-refoulement, presumption of innocence, a fair trial, legal counsel and equal protection under the law;

6.  Stresses the need to provide guarantees in order to avoid, in the future, any infringement of fundamental rights when anti-terrorism policies are implemented;

7.  Considers that Member States have stated their willingness to abide by international law, but until now have not properly fulfilled the positive obligation incumbent upon all Member States to investigate serious human rights violations connected with the CIA programme, and regrets the delays in shedding full light on this case in order to afford full redress to victims as quickly as possible, including apologies and compensation where appropriate;

8.  Believes that the difficulties encountered by Member States in conducting inquiries result in a failure to comply fully with their international obligations, which undermines mutual trust in fundamental rights protection and thus becomes the responsibility of the EU as a whole;

9.  Reiterates that the commitment of Member States and of the EU to investigate European involvement in the CIA programme is in line with the principle of sincere and loyal cooperation enshrined in Article 4(3) of the TEU;

Accountability process in the Member States

10.  Expresses concerns regarding the obstacles encountered by national parliamentary and judicial investigations into some Member States’ involvement in the CIA programme, as documented in detail by the 2011 Council of Europe report on abuse of state secrecy and national security, including lack of transparency, classification of documents, prevalence of national and political interests, narrow remits for investigations, restriction of victims’ right to effective participation and defence, and lack of rigorous investigative techniques and of cooperation between investigative authorities across the EU; calls on the Member States to avoid basing their national criminal proceedings on such legal grounds, which enable and lead to the termination of criminal proceedings by invoking clauses of the statute of limitations and lead to impunity, and to respect the principle of international customary law, which recognises that the statute of limitations cannot and should not be applied to cases of serious human rights violations;

11.  Urges those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light; calls in particular on Member States to investigate whether there are secret prisons on their territory or whether operations have taken place whereby people have been held under the CIA programme in facilities on their territory;

12.  Notes that the parliamentary inquiry carried out in Romania concluded that no evidence could be found to demonstrate the existence of a secret CIA detention site on Romanian territory; calls on the judicial authorities to open an independent inquiry into alleged CIA secret detention sites in Romania, in particular in the light of the new evidence on flight connections between Romania and Lithuania;

13.  Encourages Poland to persevere in its ongoing criminal investigation into secret detention, but deplores the lack of official communication on the scope, conduct and state of play of the investigation; calls on the Polish authorities to conduct a rigorous inquiry with due transparency, allowing for the effective participation of victims and their lawyers;

14.  Notes that the parliamentary and judicial inquiries that took place in Lithuania between 2009 and 2011 were not able to demonstrate that detainees had been secretly held in Lithuania; calls on the Lithuanian authorities to honour their commitment to reopen the criminal investigation into Lithuania’s involvement in the CIA programme if new information should come to light, in view of new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and Lithuania; notes that analysis of the Eurocontrol data also reveals new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006; considers it essential that the scope of new investigations cover, beyond abuses of power by state officials, possible unlawful detention and ill-treatment of persons on Lithuanian territory; encourages the Prosecutor-General’s Office to substantiate with documentation the affirmations made during the LIBE delegation’s visit that the ‘categorical’ conclusions of the judicial inquiry are that ‘no detainees have been detained in the facilities of Projects No 1 and No 2 in Lithuania’;

15.  Notes the criminal investigation launched in the UK on renditions to Libya, and welcomes the decision to continue the wider inquiry into the UK’s responsibility in the CIA programme once the investigation has been concluded; calls on the UK to conduct this inquiry with due transparency, allowing the effective participation of victims and civil society;

16.  Acknowledges that Member States’ investigations have to be based on solid judicial evidence and on respect for national judicial systems and EU law, not just on media and public speculation;

17.  Calls on Member States such as Finland, Denmark, Portugal, Italy, the United Kingdom, Germany, Spain, Ireland, Greece, Cyprus, Romania and Poland, which were mentioned in the Temporary Committee’s report, to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls on all Member States to respect the right to freedom of information and to respond appropriately to requests for access to information; expresses concern, in the light of this, that most Member States, with the exception of Denmark, Finland, Germany, Ireland and Lithuania, have failed to respond appropriately to requests from Reprieve and from Access Info Europe for access to information for the purposes of their investigations into extraordinary rendition cases;

18.  Urges the Member States to revise any provisions or interpretations that are sympathetic to torture, such as Michael Wood’s legal opinion (referred to in Parliament’s aforementioned resolution of 14 February 2007), which, in defiance of international case law, argues that it is legitimate to receive and use information obtained by torture as long as there is no direct responsibility for it (thereby motivating and justifying the outsourcing of torture);

19.  Calls on all Member States to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance;

20.  Calls on the Member States, in the light of the increased cooperation and exchange of information between their secret intelligence and security agencies, to ensure full democratic scrutiny of those agencies and their activities through appropriate internal, executive, judicial and independent parliamentary oversight, preferably through specialised parliamentary committees with extensive remits and powers, including the power to require information, and with sufficient investigative and research resources to be able to examine not only issues such as policy, administration and finances, but also the operational work of the agencies;

Response of the EU institutions

21.  Regards it as essential that the EU condemn all abusive practices in the fight against terrorism, including any such acts committed on its territory, so that it can not only live up to its values but also advocate them credibly in its external partnerships;

...

32.  Calls on the Commission to investigate whether EU provisions, in particular those on asylum and judicial cooperation, have been breached by collaboration with the CIA programme;

33.  Calls on the Commission to facilitate and support human-rights-compliant mutual legal assistance and judicial cooperation between investigating authorities and cooperation between lawyers involved in accountability work in Member States, and in particular to ensure that important information is exchanged and to promote the effective use of all available EU instruments and resources;

34.  Calls on the Commission to adopt within a year a framework, including reporting requirements for Member States, for monitoring and supporting national accountability processes, including guidelines on human-rights-compliant inquiries, to be based on the standards developed by the Council of Europe and the UN;

...

45.  Is particularly concerned by the procedure conducted by a US military commission in respect of Abd al-Rahim al-Nashiri, who could be sentenced to death if convicted; calls on the US authorities to rule out the possibility of imposing the death penalty on Mr al-Nashiri and reiterates its long-standing opposition to the death penalty in all cases and under all circumstances; notes that Mr al-Nashiri’s case has been before the European Court of Human Rights since 6 May 2011; calls on the authorities of any country in which Mr al-Nashiri was held to use all available means to ensure that he is not subjected to the death penalty; urges the VP/HR to raise the case of Mr al-Nashiri with the US as a matter of priority, in application of the EU Guidelines on the Death Penalty;

46.  Reiterates that full application of the human rights clause of agreements with third countries is fundamental in relations between the EU and its Member States and those countries, and considers that there is real momentum to revisit the way European governments have cooperated with dictatorships’ apparatus of repression in the name of countering terrorism; considers, in this connection, that the newly revised European Neighbourhood Policy must provide strong support for security sector reform, which must, in particular, ensure a clear separation between intelligence and law enforcement functions; calls on the EEAS, the Council and the Commission to step up their cooperation with the CPT and other relevant Council of Europe mechanisms in the planning and implementation of counter-terrorism assistance projects with third countries and in all forms of counter-terrorism dialogue with third countries;

47.  Calls on the Government of the former Yugoslav Republic of Macedonia (FYROM) to ascertain responsibility and ensure accountability for the abduction, apparently through mistaken identity, of Khaled el-Masri, which led to his illegal detention and alleged torture; deplores the lack of action by the Skopje Prosecutor’s Office with a view to conducting a criminal investigation into Mr el-Masri’s complaint; notes that the European Court of Human Rights has taken up this case and that the Grand Chamber held its first hearing on 16 May 2012; considers that the FYROM Government’s alleged conduct in this case is inconsistent with the EU’s founding principles of fundamental rights and the rule of law and must be duly raised by the Commission in connection with the FYROM’s candidacy for EU accession;

...”

(d)  The 2007 ICRC Report

92.  The International Committee of the Red Cross made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.

After the US President publicly confirmed that 14 terrorist suspects (“high value detainees”) – including the applicant – detained under the CIA detention programme had been transferred to the military authorities in the US Guantanamo Bay Naval Base, the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 – the 2007 ICRC Report – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.

The report was (and formally remains) classified as “strictly confidential”. It was published by the New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU’s site.

93.  The rendition programme as applied to those detainees is, in so far as relevant, related as follows:

“  1.  MAIN ELEMENTS OF THE CIA DETENTION PROGRAM

... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.

...

2.  ARREST AND TRANSFER

(...) The fourteen were arrested in four different countries [Thailand, Pakistan, Somali and the United Arab Emirates]. In each case, they were reportedly arrested by the national police or security forces of the country in which they were arrested.

In some cases US agents were present at the time of arrest. All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country ...(reportedly Afghanistan, see below) and from there on to other countries. Interrogation in the country of arrest was conducted by US agents in nearly all cases. In two cases, however, detainees reported having been interrogated by the national authorities, either alone or jointly with US agents:...Hussein Abdul Nashiri was allegedly interrogated for the first month after arrest by Dubai agents.

During their subsequent detention, outlined below, detainees sometimes reported the presence of non-US personnel (believed to be personnel of the country in which they were held), even though the overall control of the facility appeared to remain under the control of the US authorities.

Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantanamo in September 2006.

The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.

The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.

In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.

The ICRC was informed by the US authorities that the practice of transfers was linked specifically to issues that included national security and logistics, as opposed to being an integral part of the program, for example to maintain compliance. However, in practice, these transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. This report will not enter into conjecture by referring to possible countries or locations of places of detention beyond the first and second countries of detention, which are named, and will refer, where necessary, to subsequent places of detention by their position in the sequence for the detainee concerned (e.g.. third place of detention, fourth place of detention). The ICRC is confident that the concerned authorities will be able to identify from their records which place of detention is being referred to and the relevant period of detention.

...

1.2.  CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION

Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.

None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.

In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern.

1.3.  OTHER METHODS OF ILL-TREATMENT

... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.

The methods of ill-treatment alleged to have been used include the following:

•  Suffocation by water poured over a cloth placed over the nose and mouth, alleged by three of the fourteen.

•  Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.

•  Beatings by use of a collar held around the detainees’ neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen.

•  Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen.

•  Confinement in a box to severely restrict movement alleged in the case of one detainee.

•  Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months.

•  Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time.

•  Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water.

•  Prolonged shackling of hands and/or feet was alleged by many of the fourteen.

•  Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen.

•  Forced shaving of the head and beard, alleged by two of the fourteen.

•  Deprivation/restricted provision of solid food from 3 days to 1 month after arrest, alleged by eight of the fourteen.

In addition, the fourteen were subjected for longer periods to a deprivation of access to open air, exercise, appropriate hygiene facilities and basic items in relation to interrogation, and restricted access to the Koran linked with interrogation.

...

For the purposes of clarity in this report, each method of ill-treatment mentioned below has been detailed separately. However, each specific method was in fact applied in combination with other methods, either simultaneously, or in succession. Not all of these methods were used on all detainees, except in one case, namely that of Mr Abu Zubaydah, against whom all of the methods outlined below were allegedly used.

1.3.1.  SUFFOCATION BY WATER

Three of the fourteen alleged that they were repeatedly subjected to suffocation by water. They were: Mr Abu Zubaydah, Mr Khaied Shaik Mohammed and Mr Al Nashiri.

In each case, the person to be suffocated was strapped to a tilting bed and a cloth was placed over the face, covering the nose and mouth. Water was then poured continuously onto the cloth, saturating it and blocking off any air so that the person could not breathe. This form of suffocation induced a feeling of panic and the acute impression that the person was about to die. In at least one case, this was accompanied by incontinence of the urine. At a point chosen by the interrogator the cloth was removed and the bed was rotated into a head-up and vertical position so that the person was left hanging by the straps used to secure him to the bed. The procedure was repeated at least twice, if not more often, during a single interrogation session. Moreover, this repetitive suffocation was inflicted on the detainees during subsequent sessions. The above procedure is the so-called ‘water boarding’ technique.

...

1.3.2.  PROLONGED STRESS STANDING

Ten of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.

For example, ... Al Nashiri [alleged that he was shackled in this position] for at least two days in Afghanistan and again for several days in his third place of detention.

...

1.3.10.  THREATS

Nine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of ‘water boarding’, electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and ofan interrogation process to which ‘no rules applied’.

... Mr Al Nashiri alleged that, in his third place of detention, he was threatened with sodomy, and with the arrest and rape of his family.

...

1.4.  FURTHER ELEMENTS OF THE DETENTION REGIME

The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.

In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.

The situation was further exacerbated by the following aspects of the detention regime:

•  Deprivation of access to the open air

•  Deprivation of exercise

•  Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation

•  Restricted access to the Koran linked with interrogation.

These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected.

...

Basic materials such as toothbrushes, toothpaste, soap, towels, toilet paper, clothes, underwear, blankets and mattress were not provided at all during the initial detention period, in some instances lasting several months. The timing of initial provision and continued supply of all these items was allegedly linked with compliance and cooperation on the part of the detainee. Even after being provided, these basic items allegedly were sometimes removed in order to apply pressure for purposes of interrogation.

In the early phase of interrogation, from a few days to several weeks, access to shower was totally denied and toilet, as mentioned above, was either provided in the form of a bucket or not provided at all - in which case those detainees shackled in the prolonged stress standing position had to urinate and defecate on themselves and remain standing in their own bodily fluids for periods of several days (see Section 1.3.2. Prolonged Stress Standing).

(e)  United Nations Reports

(i)  The 2010 UN Joint Study

94.  On 19 February 2010 the Human Rights Council of United Nations Organisation released the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism” – “the 2010 UN Joint Study” (A/HRC/1342).

95.  In the summary, the experts explained their methodology as follows:

“In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.

In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well.”

96.  In respect of secret detention in general, the experts stated the following:

“Secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus. Secret detainees are typically deprived of their right to a fair trial when State authorities do not intend to charge or try them. Even if detainees are criminally charged, the secrecy and insecurity caused by the denial of contact to the outside world and the fact that family members have no knowledge of their whereabouts and fate violate the presumption of innocence and are conducive to confessions obtained under torture or other forms of ill-treatment. At the same time, secret detention amounts to an enforced disappearance. If resorted to in a widespread or systematic manner, secret detention may even reach the threshold of a crime against humanity.

Every instance of secret detention is by definition incommunicado detention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and may in itself constitute such treatment. The suffering caused to family members of a secretly detained (namely, disappeared) person may also amount to torture or other form of ill‑treatment, and at the same time violates the right to the protection of family life.

It is not only States whose authorities keep the detainee in secret custody that are internationally responsible for violations of international human rights law. The practice of ‘proxy detention’, involving the transfer of a detainee from one State to another outside the realm of any international or national legal procedure (‘rendition’ or ‘extraordinary rendition’), often in disregard of the principle of non-refoulement, also involves the responsibility of the State at whose behest the detention takes place. The Geneva Conventions, applicable to all armed conflicts, also prohibit secret detention under any circumstances.”

97.  The experts also referred to State complicity in secret detention:

“The experts also address the level of involvement and complicity of a number of countries. For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; (c) has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed.”

98.  In relation to Romania, the report (in paragraphs 116-124) stated, among other things, the following:

“116.  ... In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that “enhanced interrogation of al-Nashiri continued through 4 December 2002” and another, partially redacted, which stated that “however, after being moved, al-Nashiri was thought to have been withholding information”, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri’s rendition - details which remain classified as “Top Secret”.

117.  Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight “circuit”, during which it landed in and departed from six different foreign territories - the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco - as well as Guantanamo Bay, Cuba. Focus was also placed on a flight between the two listed European “black site” locations - namely from Szymany (Poland) to Bucharest - on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit - beginning in Tashkent, concluding in Guantanamo - may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit.

119.  In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania.

...

124.  According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC news led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into “war zone facilities” in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantanamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantanamo in September 2006.”

(f)  The 2010 Amnesty International Report

99.  On 15 November 2010 Amnesty International published a report entitled “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention”. It compiled the latest evidence of European countries’ complicity in the CIA’s programmes in the context of the fight against terrorism in the aftermath of the 11 September 2001 attacks in the USA.

100.  In respect of Romania, the report stated, among other things, the following:

“ROMANIA: IMPLAUSIBLE DENIALS AMIDST MOUNTING ALLEGATIONS

New evidence of Romanian participation in the CIA’s rendition and secret detention programmes came to light in July 2010 when the Polish Border Guard Office released information indicating that a September 2003 flight took on passengers in Poland and continued on to Romania. Despite steadily mounting public information alleging that detainees were housed in a secret detention centre in Romania, including press reports citing unnamed former US intelligence officials, the Romanian government continued to deny any involvement in the CIA’s rendition and secret detention programmes.

Romania was identified as early as 2005 as a country alleged to have hosted a secret CIA detention facility. Reports by the PACE and the TDIP also alleged that Romania hosted such a facility. The European Commission has written to the Romanian authorities seeking further information. Citing an internal investigation conducted in 2005 by governmental authorities and the 2007 conclusions of a Senate Committee of Inquiry, the Romanian authorities responded to the Council of Europe and European Union by vigorously denying any involvement in the rendition and secret detention programmes.

Since late 2008, claims that Romania hosted a secret CIA prison have surfaced from a variety of sources. In August 2009, the New York Times reported that Kyle “Dusty” Foggo, then head of a CIA supply facility in Frankfurt, supervised the construction of three CIA detention centres in Europe. Unnamed former US intelligence sources were reported to have claimed that one such centre was located in Bucharest, the Romanian capital city. In response, the Romanian authorities reiterated their stock denial, stating that they co-operated “in good faith and with utmost transparency” with the international mechanisms investigating the secret sites and claiming categorically that the allegations against Romania were “groundless”.

The latest such denial came in response to the February 2010 UN Joint Study on Secret Detention. After summarizing the findings of the PACE report with respect to Romania’s involvement in the secret detention programme, the study presented an independent analysis of available data and concluded that a plane operating in the context of the CIA’s rendition programme – a Boeing 737, registration number N313P – flew from Poland to Romania on 22 September 2003. The UN experts could not, however, confirm definitively that the flight involved transfers of detainees. In a note verbale to the UN experts dated 27 January 2010, the Romanian authorities repeated the denials that planes carrying detainees landed on Romanian territory and that they hosted a secret detention site. The note acknowledged that “a number of airplanes that proved to be rented by the CIA made stopovers on [sic] Romanian airports,” but “[t]here is no data whatsoever that detainees were on board those airplanes”.

Documents released by the Polish Border Guard Office in July 2010 (see above section on Poland) indicate that the same Boeing 737, registration number N313P, arrived in Poland on 22 September 2003 with no passengers aboard, but took on five passengers before departing Szymany for Bucharest. In August 2010, the Associated Press, citing unnamed current and former officials, reported that Khaled Sheikh Mohamed, alleged mastermind of the 11 September 2001 attacks in the USA, was transferred around 22 September 2003 on a Boeing 737 from Szymany, Poland, to a new detention facility codenamed “Britelite” in Bucharest, Romania. The Associated Press article alleged that a number of so-called highvalue detainees – including Abu Zubaydah, Abd al-Rahim al-Nashiri, Ramzi Binalshibh and Mustafa al-Hawsawi – had been secretly transferred to Guantanamo Bay, arriving on 24 September 2003, after the Boeing 737 on which they were travelling made a number of prior stops, including in Poland and Romania. Citing claims by unnamed former US intelligence officials, the Associated Press reported again in October 2010 that Abd al-Rahim al-Nashiri was held in secret detention in Romania.

A delegation from the CPT visited Romania in September 2010. During the visit the delegation “had a meeting with Teodor Viorel Meleşcanu, Vice-President of the Senate, in order to discuss the issue of the alleged existence some years ago of secret detention facilities on Romanian territory operated by the Central Intelligence Agency (CIA) of the United States of America”.

Recommendations

Amnesty International calls on the Romanian authorities as a matter of urgency to follow the lead of other EU member states that are engaged in accountability processes aimed at revealing the truth about their respective roles in the CIA’s rendition and secret detention programmes post-11 September 2001. Revelations in 2009 and 2010 regarding Romania’s alleged complicity in the CIA rendition and secret detention programmes require that the Romanian government commit to the establishment of a full, impartial, independent, and effective investigation into its role in these operations. The Romanian authorities should also approve the publication of the CPT’s final report on its visit to Romania.”

7.  Parliamentary inquiry in Romania

101.  In 2008 a brief parliamentary inquiry into allegations that a secret CIA detention site existed in the country was conducted in Romania. The inquiry was conducted by the special parliamentary committee (Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României) behind closed doors and only its “final conclusions” have been made public. The relevant parts can be red as follows:

“1.  To the question whether secret American bases exist or existed in Romana, the Investigation Committee replies negatively.

2.  To the question whether in Romania, in the researched period, there exist or existed facilities for the detention of prisoners, other then penitentiary ones (real, secret, ad-hoc, buildings usable in the form improvised for this purpose), potentially in the proximity of airports Timişoara, Bucharest – Henri Coanda or Baneasa, and Constanta, the Investigative Committee replies negatively.

...

8.  To the question whether the purpose of the stops in Romania of the flights presented at chapter 5, the Investigative Committee has solid grounds to reply that they had nothing to do with potential illegal transports of prisoners on the territory of Romania.

...”

102.  On 13 October 2008, in reply to a request made by APADOR-CH concerning the purpose of the flights mentioned by the parliamentary report cited above, the President of the Romanian Senate stated that:

“... the Investigation Committee was assigned to investigate the statements regarding the existence of CIA detention facilities or of some flights of planes leased by CIA on the territory of Romania.

Consequently, since its mandate was strictly limited to the afore-mentioned issue, the Investigative Committee did not request data from appropriate institutions, did not perform any investigation, and does not hold any kind of information regarding the purpose of the flights with the indication mentioned in chapter 5, point 3. ...”

8.  Criminal investigation in Romania

103.  On 29 May 2012 the applicant’s lawyer filed a criminal complaint (plângere penală) on his behalf before the General Prosecutor with regard to the applicant’s secret detention and ill-treatment in Romania, as well as with regard to his rendition.

104.  On 20 July 2012 the General Prosecutor has acknowledged that the complaint has been registered and assigned a file number, and that its review is at a preliminary stage.

105.  No official decision to open a criminal investigation was communicated up to date.

9.  Selected international media reports on the CIA rendition operations in Romania

106.  On 2 November 2005 the Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from the US Government but no specific locations in Eastern Europe were identified. It reads, in so far as relevant, as follows:

“The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.

The existence and locations of the facilities – referred to as ‘black sites’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

...

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency’s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay.

The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.

...

It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA’s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA’s approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘waterboarding’, in which a prisoner is made to believe he or she is drowning.

...

The contours of the CIA’s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency’s prisons.

More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq.

The detainees break down roughly into two classes, the sources said.

About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category -- in Thailand and on the grounds of the military prison at Guantanamo Bay -- were closed in 2003 and 2004, respectively.

A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as "rendition." While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction.

...

The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials.

...

The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime.

...

By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. (...)”

107.  The fact that Romania had hosted CIA flights was first made public by Human Rights Watch on 6 November 2005. On that day, the Human Rights Watch issued its “Statement on US Secret Detention Facilities in Europe” (for further details see paragraphs 61 and followings, above).

108.  On 8 December 2011 The Independent published a material entitled “Inside Romania’s secret CIA prison”. It reads, in so far as relevant, as follows:

“In northern Bucharest, in a busy residential neighbourhood minutes from the heart of the capital city, is a secret the Romanian government has long tried to protect.

For years, the CIA used a government building — codenamed "Bright Light" — as a makeshift prison for its most valuable detainees. There it held al-Qa’ida operatives Khalid Sheikh Mohammed, the mastermind of 9/11, and others, in a basement prison before they were ultimately transferred to Guantanamo Bay, Cuba, in 2006, according to former US intelligence officials familiar with the location and inner workings of the prison.

The existence of a CIA prison in Romania has been widely reported, but its location has never been made public. The Associated Press and German public television ARD located the former prison and learned details of the facility where harsh interrogation tactics were used. ARD’s programme on the CIA prison is set to air today.

The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA’s detention and interrogation programme ended in 2009.

Unlike the CIA’s facility in Lithuania’s countryside or the one hidden in a Polish military installation, the CIA’s prison in Romania was not in a remote location.

It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks.

The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from Nato and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building.

In an interview at the building in November, senior ORNISS official Adrian Camarasan said the basement is one of the most secure rooms in all of Romania. But he said Americans never ran a prison there.

"No, no. Impossible, impossible," he said in an ARD interview for its "Panorama" news broadcast, as a security official monitored the interview.

The CIA prison opened for business in the autumn of 2003, after the CIA decided to empty the black site in Poland, according to former US officials.

Shuttling detainees into the facility without being seen was relatively easy. After flying into Bucharest, the detainees were brought to the site in vans. CIA operatives then drove down a side road and entered the compound through a rear gate that led to the actual prison.

The detainees could then be unloaded and whisked into the ground floor of the prison and into the basement.

The basement consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca, the officials said. The cells were on springs, keeping them slightly off balance and causing disorientation among some detainees.

The CIA declined to comment on the prison.

During the first month of their detention, the detainees endured sleep deprivation and were doused with water, slapped or forced to stand in painful positions, several former officials said. Waterboarding, the notorious interrogation technique that simulates drowning, was not performed in Romania, they said.

...

But details of the prison network continue to trickle out through investigations by international bodies, reporters and human rights groups. "There have been years of official denials," said Dick Marty, a Swiss politician who led an investigation into the CIA secret prisons for the Council of Europe. "We are at last beginning to learn what really happened in Bucharest."

During the Council of Europe’s investigation, Romania’s foreign affairs minister assured investigators in a written report that, "No public official or other person acting in an official capacity has been involved in the unacknowledged deprivation of any individual, or transport of any individual while so deprived of their liberty." That report also described several other government investigations into reports of a secret CIA prison in Romania and said: "No such activities took place on Romanian territory."

Reporters and human rights investigators have previously used flight records to tie Romania to the secret prison program. Flight records for a Boeing 737 known to be used by the CIA showed a flight from Poland to Bucharest in September 2003 (...)”

C.  Relevant law and practice

1.  UN Geneva Conventions

(a)  Geneva (III) Convention

109.  Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the III Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows:

“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1)  Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2)  Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a)  that of being commanded by a person responsible for his subordinates;

(b)  that of having a fixed distinctive sign recognizable at a distance;

(c)  that of carrying arms openly;

(d)  that of conducting their operations in accordance with the laws and customs of war.

(3)  Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

...”

110.  Article 5 states:

“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

111.  Article 13 reads:

“Art 13.  Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.”

112.  Article 21 reads, in so far as relevant:

“The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.”

(b)  Geneva (IV) Convention

113.  Article 3 of the Geneva (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the IV Geneva Convention”) reads, in so far as relevant, as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1)  Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a)  violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b)  taking of hostages;

(c)  outrages upon personal dignity, in particular humiliating and degrading treatment;

(d)  the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

114.  Article 4 reads, in so far as relevant, as follows:

“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...”

2.  UN General Assembly Resolution 60/147

115.  The UN General Assembly’s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows:

“24.  ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations”.

3.  Relevant domestic law

116.  Article 250 of the Criminal code in force at the relevant time, which defines the offence of abuse of power (purtare abuzivă) as well as other relevant criminal law is described in the cases Velcea v. Romania ((dec.), no. 60957/00, 23 June 2005), Damian-Burueana and Damian v. Romania (no. 6773/02, § 57, 26 May 2009) and Ghiga Chiujdea v. Romania (no. 4390/03, § 21, 5 October 2010).

117.  The Law no. 182/2002 on classified information refers, among others, to the notion of “State secret” and creates the National Registry Office for Classified Information (Oficiul Registrului Naţional al Informaţiilor Secrete de Stat – ORNISS) which is an agency subordinated to the Government, competent to register all the classified information and all the personnel having obtained the clearance certificate necessary in order to work with classified information (Article 21).

COMPLAINTS

118.  The applicant’s complaints under the Convention relate to three principal issues: his ill-treatment in Romania while in US custody, his transfer from Romania and Romania’s failure to conduct an effective investigation into the circumstances surrounding his ill-treatment, detention and transfer from the Romanian territory.

119.  As regards ill-treatment and detention in Romania, the applicant alleges that Romania violated Articles 3, 5 and 8 of the Convention in enabling his torture, ill-treatment and incommunicado detention on the Romanian territory. Romania knew and should have known about the CIA’s rendition programme, the “black site” in Romania, and torture and inhuman and degrading treatment to which the CIA subjected “high value detainees” as part of this programme. Despite that, Romania knowingly and intentionally enabled the CIA to detain the applicant at the Bucharest “Bright light” facility, thereby allowing the CIA to subject him on the Romanian territory to: (1) treatment that amounted to torture in violation of Article 3 of the Convention; (2) detention without any legal basis in violation of Article 5, and (3) abuse and deprivation of any access to or contact with his family, in violation of Article 8.

120.  As regards his transfer from Romania, the applicant submits that, in knowingly and intentionally enabling the applicant’s transfer from Romania despite substantial grounds for believing that there was a real risk that he would be subjected to the death penalty, Romania (1) violated his rights under both Articles 2 and 3 of the Convention as well as Protocol No. 6 to the Convention, (2) violated his rights under Article 3 by allowing him to be transferred from Romania despite the real risk of further ill-treatment, (3) violated his rights under Article 5 by allowing him to be transferred despite a real risk of further incommunicado detention, and (4) violated his rights under Article 6 by allowing him to be transferred to a jurisdiction where he would be subjected to a flagrantly unfair trial.

121.  As regards Romania’s failure to conduct an effective investigation, the applicant submits that Romania violated Articles 2, 3, 5, and 8 as well as his right to an effective remedy under Article 13 by failing to conduct an effective investigation into the serious violations of his rights.

Furthermore, by its refusal to acknowledge, promptly and effectively investigate and disclose details of his detention, ill-treatment, enforced disappearance and rendition, Romania violated the applicant’s and the public’s right to truth under Articles 2, 3, 5 and 10 of the Convention.

QUESTIONS

A.  As to the facts of the case:

1.  In the period between 6 June 2003 and 6 September 2006 was the applicant detained in a secret detention facility in Romania?

 

In this respect, the Government, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, are asked to supply materials showing whether his detention in Romania has been established in the investigation started following the criminal complaint dated of 29 May 2012 and on which evidence.

 

2.  Does there exist a document (agreement) on setting up and running a secret detention facility on the Romanian territory prepared by the Romanian authorities? If so, has this document been included in evidence gathered during the investigation?

 

If that document exists, the Government, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, are asked to supply a copy.

B.  As to the law:

I.  Alleged ill-treatment and incommunicado detention on Romanian territory

3.  Assuming that the applicant was detained in Romania during the relevant period and in the light of the applicant’s submissions and material produced by him:

(a)  has the applicant been subjected to torture or to other forms of treatment prohibited by Article 3 of the Convention while in U.S. custody on Romanian territory?

(b)  has he been held incommunicado in a secret detention facility in breach of Article 3 and Article 5 § 1 of the Convention?

(c)  has he been abused and deprived of access to, or contact with, his family in breach of Article 8 of the Convention?

 

4.  In case of an affirmative answer to any of the above questions:

(a)  what was the form and extent of the involvement of Romania’s authorities and/or their agents in all or any of those facts?

(b)  have Romania’s acts and/or omissions in relation to the “High Value Detainees Programme” as applied to the applicant on Romanian territory amounted to:

(i)  a violation of Article 3 of the Convention on account of enabling his torture or ill-treatment, and/or by reason of not protecting him against such torture and ill-treatment;

(ii)  a separate violation of Article 3 on account of enabling his incommunicado detention, and/or by reason of not protecting him against such detention;

(iii)  a violation of Article 5 § 1 of the Convention on account of his incommunicado detention;

(iv)  a violation of Article 8 of the Convention on account of enabling, and/or not preventing, his abuse and deprivation of contact with his family?

 

Reference is made, in particular, to Ireland v. the United Kingdom judgment (18 January 1978, §§ 162 et seq., Series A no. 25) and Ilaşcu and Others v. Moldova and Russia judgement ([GC], no. 48787/99, § 318, ECHR 2004-VII).

II.  Alleged transfer of the applicant from Romanian territory

5.  Has the applicant been transferred from Romanian territory to territory over which Romania has no jurisdiction?

 

6.  In the event of an affirmative answer to the above question, have Romania’s acts and/or omissions in respect of such transfer amounted to:

(a)  a violation of Article 2 of the Convention, and/or

(b)  a violation of Article 1 of Protocol No. 6 to the Convention

on account of his rendition to a country where he faced the death penalty?

 

7.  In the event of an affirmative answer to question 2, above, has Romania violated Article 3 of the Convention by exposing the applicant to the risk of torture and other forms of treatment prohibited by this provision?

 

8.  Always in the event of an affirmative answer to the said question 2, has Romania exposed the applicant to the risk of incommunicado detention, contrary to Article 3 and Article 5 § 1 of the Convention? In this respect, has Romania complied with its positive obligations under Article 5 § 1 of the Convention to protect the applicant from arbitrary detention (see Kurt v. Turkey, 25 May 1998, §§ 122 et. seq., Reports of Judgments and Decisions 1998‑III, and Medova v. Russia, no. 25385/04, § 123, 15 January 2009)?

 

9.  Has Romania violated Article 6 of the Convention in that it enabled his rendition to a country where he would face a flagrantly unfair trial (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 258 et seq., 17 January 2012)?

III.  As regards the alleged failure to carry out an adequate investigation

10.  Has Romania complied with its duty under Article 3 of the Convention to carry out an “effective and thorough” investigation into the allegations of torture, other forms of ill-treatment prohibited by this provision and incommunicado detention alleged to have occurred on its territory in connection with the “High Value Detainees Programme” and in respect of the applicant?

 

11.  In this regard, has there been a violation of Article 3 taken alone and/or in conjunction with Article 13 of the Convention?

 

The Government, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, are requested to describe in a detailed manner the course of the investigation, procedural and other decisions taken in, or in connection with, the investigation, its scope and the full list of offences investigated. They are also asked to indicate the circle of suspects and charges against them and submit the relevant decisions and documents.

 

12.  Has the applicant had at his disposal an “effective remedy” within the meaning of Article 13 for his complaints under Articles 3, 5 § 1 and 8 of the Convention?