European Court of Human Rights

339. The Government submitted that the application was premature, since the criminal investigation into the applicant’s allegations of ill-treatment and secret detention in Poland was still pending.

The claims submitted by him to the national authorities and to the Court were identical in Convention terms. In that respect, the Government stressed that, in the light of the Court’s established case-law, it was not its task to substitute itself for the national authorities, as they were better placed to examine the facts of cases and eliminate alleged violations.

340. The proceedings before the Court, they added, should not be aimed at determining factual circumstances referred to by applicants. The verification of the facts by the Court was, in the Government’s opinion, in contradiction with the principle of subsidiarity, as defined by the Court itself. In the instant case, there were no grounds for replacing the national authorities by the Court because the facts of the case were currently being examined by the Polish prosecutors.

The authorities had taken all possible measures to safeguard the legally protected interests of the applicant, to whom they had granted injured party status and who exercised his procedural rights in the proceedings.

Accordingly, the Government concluded, the investigation constituted an “effective remedy” for the purposes of Article 35 § 1 and the application should be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 4 of the Convention.

341. The applicant disagreed and said that the pending criminal investigation into CIA prisons in Poland had been inordinately delayed, subject to undue political influence and ineffective. It had been pending for over five years with no public disclosures as to its precise scope, progress or any indication as to when it was likely to be concluded. The Government had provided no explanation as to why it had repeatedly been extended and was still pending with no credible sign of conclusion almost a decade after he had been secretly detained and tortured in Poland. Thus, the Convention did not require applicants to exhaust domestic remedies that were plainly ineffective.

342. The applicant further stressed that, despite the difficult circumstances under which he was currently detained, he had made every effort to engage the authorities in order to ensure an effective investigation of his case in Poland and had exhausted all available and effective domestic remedies.

On 21 September 2010 he had filed an application with the Polish prosecutor to intervene in the pending criminal investigation concerning CIA black sites in Poland. On 25 February 2011 he had lodged a complaint with the relevant court, alleging undue delay in the investigation. That complaint had been dismissed on 20 April 2011 by the decision that was final and could not be appealed against.

In view of the foregoing, the applicant asked the Court to reject the Government’s preliminary objection.

II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND

343. The Court observes that the Government’s objection raises issues concerning the effectiveness of the investigation into the applicant’s allegations of torture and secret detention on Polish territory and is thus closely linked to his complaint under the procedural aspect of Article 3 of the Convention (see paragraph 3 above and paragraph 460 below). That being so, the Court considers that it should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Estamirov and Others v. Russia, no. 60272/00, §§ 72 and 80, 12 October 2006; and Kadirova and Others v. Russia, no. 5432/07, §§ 75-76, 27 March 2012).

344. Although the structure of the Court’s judgments traditionally reflects the numbering of the Articles of the Convention, it has also been customary for the Court to examine the Government’s compliance with their procedural obligation under Article 38 of the Convention at the outset, especially if negative inferences are to be drawn from the Government’s failure to submit the requested evidence (see, among other cases, Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 209, ECHR 2013- ...; Shakhgiriyeva and Others v. Russia, no. 27251/03, §§ 134-140, 8 January 2009; Utsayeva and Others v. Russia, no. 29133/03, §§ 149-153, 29 May 2008; Zubayrayev v. Russia, no. 67797/01, §§ 74-77, 10 January 2008; and Tangiyeva v. Russia, no. 57935/00, §§ 73-77, 29 November 2007; see also paragraph 390 below).

345. On giving notice of the present case to the Government and, following the decision to examine Mr Al Nashiri’s application simultaneously with the case of Husayn (Abu Zubaydah), the Court in connection with its examination of both cases has asked the Government on numerous occasions to produce documentary evidence (see paragraphs 17-40 above).

Faced with the Government’s failure to comply with its evidential requests, the Court asked the parties to comment, in particular in the light of Janowiec and Others and related case-law, on the Government’s compliance with their obligation to “furnish all necessary facilities” for its examination of the case, as laid down in Article 38 of the Convention. This Article states as follows:

“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”

346. The Government justified their failure to submit evidence and information requested by the Court by the fact that the criminal investigation into the applicant’s allegations of ill-treatment and secret detention by the CIA in Poland was pending. For that reason, they explained, they were not in a position to address in detail the questions put to them by the Court on communication of the case or to produce the requested documents. In their view, the interests of the administration of justice required them to adhere strictly to the secrecy of the investigation and for that reason they could not submit to the Court all the requested information and documents. Indeed, by answering the Court’s questions they might be seen as interfering with the competence of the prosecution and judicial authorities, which were independent of the Government.

In that respect, they relied, on an a contrario basis, on the case of Nolan and K. v. Russia (cited in paragraph 360 below).

347. At the same time, the Government stressed that they were fully aware of their duty under Article 38 of the Convention to cooperate with the Court as a matter of international law. This obligation, they affirmed, was also enshrined in Article 9 of the Polish Constitution, which laid down the principle of respect for international law, meaning that Poland had a duty to fulfil, in good faith, the obligations imposed on the State as a subject of international law.

348. In their subsequent written submissions (see also paragraphs 20-21; 26-27; 30; 33; 35 and 40 above) and at the public hearing the Government repeated that they were fully aware of the fact that the Court was the master of its own procedure and that it was up to the Court to make appropriate arrangements to ensure the confidentiality of the documents submitted.

However, they argued, unlike other international courts, for instance the International Criminal Court or the Court of Justice of the European Union, the Rules of Court did not indicate at all the manner in which sensitive documents submitted by the parties, especially the States, were to be protected. Nor were there any rules regulating the way in which classified documents were to be produced, made available, communicated to the other party or stored in the Court’s Registry. No provision provided for sanctions to be imposed on a party disclosing the content of classified material to the public.

In the Government’s submission, the possibility of restricting public access to documents under Rule 33 of the Rules of Court was insufficient and this provision was not materially adequate to ensure confidentiality. The decision of the President of the Court restricting access to documents was not a permanent one and could be changed subsequently without any consultation of the parties. In any event, the Rules of Court were merely an act of an internal nature.

349. At the public hearing, the Government expressed their disappointment with the Court’s refusal to become acquainted - in the manner proposed by them - with material in the case file in Poland and the documents that could have been made available to the judges, in particular an extract from the non-confidential part of the file.

They said that the latter document had been prepared specially for the Court and contained information about the pending proceedings that was more detailed. Consequently, it contained some classified information, which required, in accordance with Polish law, an indication of the persons who could become acquainted with it. Under the national rules, it also had to be secured properly, even in the proceedings conducted by the Court in camera. However, the Court had decided not to take advantage of their offers. Nor had it accepted prior, renewed proposals from the Government to assist it in making an application to the Kraków Prosecutor of Appeal for access to the investigation file.

350. In the Government’s opinion, there was nothing to prevent the Court from admitting the evidence in the manner suggested by them. The document in question was necessary for the Court in order to gain thorough knowledge about the scope of the investigation and the steps taken to obtain evidence. Only this would have enabled the Court to assess the effectiveness and thoroughness of the investigation.

However, the Court, at the fact-finding hearing and the hearing in camera, had refused to apprise itself of the document and had not even given the Government an opportunity to discuss its structure. It had probably been guided by the opinion of the applicants’ representatives, who had objected to the procedure proposed by the Government. In the Government’s submission, this attitude on the part of the applicants’ lawyers could be seen only in terms of what they described as a “preconceived process move deliberately preventing the Government from presenting the status of their domestic proceedings”.

Instead, the Government added, the Court had demanded that the document be submitted in a redacted form. They had not been in a position to do so it because this would run counter to their intended purpose - they had wanted to present the Court with sensitive information on the ongoing and planned actions for gathering evidence and crucial findings of fact in the investigation to support their argument that it was thorough and effective and that, consequently, the application was premature. Yet, in order to protect the secrecy of the investigation, they could not provide such information in documents that would be distributed openly in the public domain.

351. The Government considered that the above arguments demonstrated that the situation in the present case could not be compared with the refusal to cooperate with the Court on the part of Russia in Janowiec and Others (cited above).

In particular, in Janowiec and Others the refusal concerned the decision taken by the prosecutor’s office to discontinue an investigation into events that had occurred in 1940 and when the Court requested the Russian Government to produce the said decision, the proceedings had already been concluded. Moreover, unlike Poland, the Russian Government had not presented to the Court any suggestions as to how it might consult the document in question.

352. The Government concluded that they had complied with their obligation under Article 38 to furnish all necessary facilities for the Court’s examination of the case.

353. The applicant disagreed and submitted that the Polish Government, by its failure to provide the material requested by the Court, had violated Article 38 of the Convention and had hindered his effective exercise of the right of individual petition under Article 34 of the Convention.

354. To begin with, despite the Court’s guarantee that any sensitive information conveyed by the State to the Court would be kept confidential, the Government had not supplied any meaningful information in response to the Court’s questions put to the parties when it had given notice of the application. Moreover, the Government had provided no “reasonable and solid grounds”, as required under Janowiec and Others, to justify the treatment of most of the relevant documents in the investigation as secret. Indeed, they had not even indicated which specific regulation of the Act on Protection of Classified Information had been the legal basis for the secrecy of the investigation file, or which agency had issued the decision to classify the documents, or why certain volumes of the documents in the case file had remained classified in their entirety instead of being released to the Court in redacted form.

355. This, the applicant pointed out, was in contrast to the approach of the Polish Government in Janowiec and Others, where they had argued that the Russian Government had not produced a reasoned decision on the classification of relevant documents. In any event, Janowiec and Others made it clear that a mere reference to the structural deficiency of the domestic law, which rendered impossible any communication of sensitive documents to international bodies, was an insufficient explanation to justify the withholding of the information requested by the Court. Accordingly, invoking limitations under Polish law regarding the classification of documents could not justify the Government’s failure to cooperate with the Court.

356. The applicant also stressed that the Government had failed to comply in a timely manner with the Court’s two procedural orders directing the production of an extract from the investigation file. In consequence, they had failed to abide by the standards reiterated in Janowiec and Others and the Court was entitled to draw adverse inferences from such conduct.

357. As regards the argument that the lack of specific provisions in the Rules of Court governing the handling of sensitive materials had prevented the Government from supplying the evidence requested, the applicant said that the Government’s concerns were misplaced. The Court had successfully considered many cases concerning highly sensitive matters of national security, and the Rules of Court had demonstrated that they were sufficiently flexible and robust to deal with any concerns that might arise in the proceedings before the Court. The practice of the Court was clear -where the Government failed to provide the documentation requested by the Court, an adverse inference might be drawn from their refusal to cooperate with the Court.

358. Furthermore, the Government had been given ample opportunity to produce relevant documents to the Court and to all of the applicant’s representatives. Indeed, before the hearings, the Court had twice issued procedural orders instructing the Government to produce within a set time-limit an extract from the non-confidential part of the investigative file. The Government had failed to comply with these orders, prompting the Court to remind them that its decisions remained unchanged.

Despite that, the Government had still not produced the relevant documents in the manner specified by the Court. Instead, at the late stage of the 2 December 2013 hearing, without prior notice to the Court or to the applicants’ representatives, the Government had announced that the extract could be viewed by the judges and Polish representatives for the applicants, thereby implying that non-Polish representatives of the applicants would be denied access.

Notwithstanding the Government’s repeated failure to comply with the Court’s orders, the Court had given them yet another opportunity to produce the extract, until two weeks after the hearing. The Government had not produced the document and, indeed, their letter of 17 December 2013 had indicated that this extract would not be forthcoming. Such conduct was incompatible with the tenor and substance of the Rules of Court and the Convention.

359. The applicant invited the Court to find that the Polish Government had not discharged their duty under Article 38 of the Convention.

1. Applicable principles deriving from the Court’s case-law

(a) General principles

360. It is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States comply with their obligation under Article 38 to furnish all necessary facilities to make possible a proper and effective examination of applications, whether the Court is conducting a fact-finding investigation or performing its general duties as regards the examination of applications.

A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see, among many examples, Janowiec and Others, cited above, § 202, Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 253-254, ECHR 2004 III; Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000 VI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 493, ECHR 2005-III).

361. In particular, in a case where the application raises issues concerning the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999 IV; and Imakayeva v. Russia, no. 7615/02, § 200, ECHR 2006-XIII (extracts)).

362. The obligation laid down in Article 38 is a corollary of the undertaking not to hinder the effective exercise of the right of individual application under Article 34 of the Convention. The effective exercise of this right may be thwarted by a Contracting Party’s failure to assist the Court in conducting an examination of all circumstances relating to the case, including in particular by not producing evidence which the Court considers crucial for its task. Both provisions work together to guarantee the efficient conduct of the judicial proceedings and they relate to matters of procedure rather than to the merits of the applicants’ grievances under the substantive provisions of the Convention or its Protocols (see, among many other examples, Janowiec and Others, cited above, § 209, with further references).

363. The Court has repeatedly held that, being master of its own procedure and of its own rules, it has complete freedom in assessing the admissibility, the relevance and the probative value of each item of evidence before it (see also paragraph 388 below). Only the Court may decide whether and to what extent the participation of a particular witness would be relevant for its assessment of the facts and what kind of evidence the parties are required to produce for due examination of the case. The parties are obliged to comply with the Court’s evidential requests and instructions, provide timely information on any obstacles to their compliance with them and give reasonable and convincing explanations for failure to comply. It is therefore sufficient for the Court to regard the evidence contained in the requested decision as necessary for the establishment of the facts in the case (see, among many other examples, Ireland v. the United Kingdom, 18 January 1978, § 210, Series A no. 25; Janowiec and Others, cited above § 208 with further references; Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 174, 1 July 2010; Nevmerzhitsky v. Ukraine, no. 54825/00, § 77, ECHR 2005-II (extracts) and Dedovskiy and Others v. Russia, no. 7178/03, § 107, ECHR 2008 (extracts)).

364. The obligation to furnish the evidence requested by the Court is binding on the respondent Government from the time such a request has been made, whether on being given notice of an application or at a subsequent stage in the proceedings.

It is a fundamental requirement that the requested material be submitted in its entirety, if the Court has so directed, and that any missing elements be properly accounted for. In addition, any material requested must be produced promptly and, in any event, within the time-limit fixed by the Court, for a substantial and unexplained delay may lead the Court to find the respondent State’s explanations unconvincing (see Janowiec and Others, cited above, § 203, with further references).

(b) Cases where national security or confidentiality concerns are involved

365. The judgment by the national authorities in any particular case that national security considerations are involved is one which the Court is not well equipped to challenge. Nevertheless, in cases where the Government have advanced confidentiality or security considerations as the reason for their failure to produce the material requested, the Court has had to satisfy itself that there were reasonable and solid grounds for treating the documents in question as secret or confidential. Where such legitimate concerns exist, the Court may consider it necessary to require that the respondent Government edit out the sensitive passages or supply a summary of the relevant factual grounds (see, among other examples, Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009 and Janowiec and Others, cited above, §§ 205-206).

Furthermore, such concerns may, depending on the document, be accommodated in the Court’s proceedings by means of appropriate procedural arrangements, including by restricting access to the document in question under Rule 33 of the Rules of Court, by classifying all or some of the documents in the case file as confidential vis-à-vis the public and, in extremis, by holding a hearing behind closed doors (see Janowiec and Others, cited above, §§ 45 and 215, and Shamayev and Others, cited above, §§ 15-16 and 21).

366. The procedure to be followed by the respondent Government in producing the requested classified, confidential or otherwise sensitive information or evidence is fixed solely by the Court under the Convention and the Rules of Court (see also paragraph 358 above). The respondent Government cannot refuse to comply with the Court’s evidential request by relying on their national laws or the alleged lack of sufficient safeguards in the Court’s procedure guaranteeing the confidentiality of documents or imposing sanctions for a breach of confidentiality (see Nolan and K. cited above; Shakhgiriyeva and Others v. Russia, no. 27251/03, §§ 136-140, 8 January 2009; and Janowiec and Others, cited above, §§ 210-211).

The Convention is an international treaty which, in accordance with the principle of pacta sunt servanda codified in Article 26 of the Vienna Convention on the Law of Treaties, is binding on the Contracting Parties and must be performed by them in good faith. Pursuant to Article 27 of the Vienna Convention, the provisions of internal law may not be invoked as justification for a failure by the Contracting State to abide by its treaty obligations. In the context of the obligation flowing from the text of Article 38 of the Convention, this requirement means that the respondent Government may not rely on domestic legal impediments, for instance an absence of a special decision by a different agency of the State, to justify a failure to furnish all the facilities necessary for the Court’s examination of the case (see, for instance, Nolan and K. cited above and Janowiec and Others, § 211).

2. Application of the above principles to the present case

367. Having regard to the particular circumstances of the case, including its background, the alleged involvement of the applicant in terrorist activities, the secrecy of the CIA rendition operations, the fact that many events that had given rise to the applicant’s Convention claims still remained undisclosed and that a large part of the potentially relevant documentary evidence was classified, the Court was mindful that the evidence requested from the Government was liable to be of a sensitive nature or might give rise to national-security concerns. For that reason, already at the initial stage of the proceedings, it gave the Government an explicit guarantee as to the confidentiality of any sensitive materials they might have produced. Relying on Rule 33 § 3 and expressly referring to “the interests of national security in a democratic society” the Court left no doubt that any such concerns would be adequately addressed in the ensuing proceedings (see paragraphs 17-19).

Subsequently, the Court, at the Government’s request, imposed confidentiality on the parties’ written submissions (see paragraphs 20, 22 and 25-28 above). It also held a separate hearing in camera, devoted exclusively to matters of evidence (see paragraphs 12 and 14 above).

368. However, no national-security related arguments have ever been invoked by the Government in response to the Court’s evidential requests and none of the requested documents have materialised. The Government justified their failure to produce the relevant evidence by the need to ensure the secrecy of the investigation into the applicant’s allegations of torture and secret detention in Poland (see paragraphs 21, 27, 30, 35, 346 and 349-350 above). Notwithstanding several letters, reminding them that in examining cases the Court followed its own procedure and the Rules of Court, they suggested that the Court should conform to the rules of their national law (see paragraphs 21-40 and paragraphs 349-350 above).

369. Throughout the written procedure the Government expressed the wish for the Court to apply - with their assistance - to the Polish prosecution authorities for the judges to have access to the non-classified part of the investigation file, under Article 156 § 5 of the Code of Criminal Procedure. That provision, subject to the investigating prosecutor’s permission, allowed “third parties” to have access to the case file “in exceptional circumstances” (see paragraphs 21, 27, 29-30 and 189 above). Had such permission been granted, they further wished the judges of the Court to inspect the file in the prosecution’s secret registry, subject to all the restrictions that applied under Polish law in that respect (see paragraphs 190-197 above).

In addition, the Government, of their own initiative, asked the Kraków Prosecutor of Appeal to prepare for the Court, by 1 October 2012, an “additional material” or a “special document” describing the progress in the investigation. That “special document” was again to be made available to the Court in compliance with Polish laws governing classified information. (see paragraphs 21-24 above).

The Government further stated that, upon the Court’s request, they would ask the Kraków Prosecutor of Appeal to prepare a “comprehensive extract” from the non-confidential part of the investigation file which, however, had to be classified in order to secure the secrecy of the investigation (see paragraph 30 above). They wished the Court to become acquainted with this extract “pursuant to conditions agreed between the Government and the Court” (see paragraph 33 above).

370. As shown by subsequent actions of the Government, those “conditions” were again meant to be defined solely by them and with reference to the national laws, rather than by the Court and in the light of its own Rules and practice.

Although unrequested, the Government brought the said extract to the Court and, at the closure of the fact-finding hearing, invited the Court and the Polish counsel for the applicants to become acquainted with it on the spot, saying that “the document could be reviewed in the course of the hearing” and that “becoming acquainted with the document must be here in se too, here and now” and that afterwards the document had to be returned to them (see paragraph 36 above).

After finally having been asked to submit the document in a redacted version within two weeks, the Government refused, maintaining that this would be inconsistent with the purpose for which the document had been prepared. Nor could they submit the non-redacted version because the Rules of Court did not offer sufficient safeguards of confidentiality for sensitive material submitted to the Court (see paragraph 40 above). The same argument was repeated at the public hearing (see paragraphs 348-350 above).

371. The Court cannot accept the Government’s view on this matter. The obligations that the Contracting States take upon themselves under the Convention read as a whole include their undertaking to comply with the procedure as set by the Court under the Convention and the Rules of Court. The Rules of Court are not, as the Government maintained, a mere “act of an internal nature” but they emanate from the Court’s treaty-given power set forth in Article 25 (d) of the Convention to adopt its own rules regarding the conduct of the judicial proceedings before it.

The absence of specific, detailed provisions for processing confidential, secret or otherwise sensitive information in the Rules of Court - which, in the Government’s view justified their refusal to produce evidence - does not mean that the Court in that respect operates in a vacuum. On the contrary, and as pointed out by the applicant (see paragraph 357 above), over many years the Convention institutions have established sound practice in handling cases involving various highly sensitive matters, including national-security related issues. Examples of procedural decisions emerging from that practice demonstrate that the Court is sufficiently well equipped to address adequately any concerns involved in processing confidential evidence by adopting a wide range of practical arrangements adjusted to the particular circumstances of a given case (see, among other rulings, Ireland v. the United Kingdom, Commission’s Report of 25 January 1976, §§ 138-140, Series B no. 23-I; Cyprus v. Turkey, no. 25781/95, Commission’s Report of 4 June 1999, §§ 41-45 and 138; Cyprus v. Turkey [GC], no. 25781/94, §§ 107-111, ECHR 2001-IV; and Shamayev and Others, cited above, §§ 15-17, 21, 53, 246 and 269).

372. In view of the foregoing and having regard to the Court’s clear and settled case-law in cases where the same objection has previously been raised and rejected (see also paragraph 361 above), the respondent State’s refusal to submit evidence based on an alleged lack of sufficient procedural safeguards guaranteeing the confidentiality of the material that they were asked to provide cannot be justified in terms of Article 38 of the Convention.

373. Nor can the Court accept the Government’s plea that the domestic regulations on the secrecy of the investigation constituted a legal barrier to the discharge of their obligation to furnish evidence. As stated above, the respondent Government cannot refuse to comply with the Court’s evidential request by relying on their national laws or domestic legal impediments; for instance, as in the present case, an alleged requirement for the judges of the Court to obtain permission from the investigating prosecutor to consult the case file. Indeed, the obligation under Article 38 implies putting in place any such procedures as would be necessary for unhindered communication and exchange of documents with the Court (see paragraph 366 above and cases cited therein, in particular Nolan and K., cited above, § 56). The Court cannot have several national authorities or courts, or prosecutors at various levels, as interlocutors and it is only the responsibility of the Polish State as such - and not that of a domestic authority or body - that is in issue before it (see Shamayev and Others, cited above, § 498).

Consequently, it was incumbent on the respondent Government to ensure that the documents requested by the Court, and those later offered by them, be accordingly prepared by the prosecution authority and submitted either in their entirety or, as directed, at least in a redacted form, within the prescribed time-limit and in the manner indicated by the Court.

374. Having regard to the conditions for the Court’s access to the document offered by the Government - an extract from the non-confidential part of the investigation file - and the confirmed fact that counsel for the applicant and Mr Abu Zubaydah had had access to this part of the file and, to some extent, its confidential part (see paragraph 38 above and also Nolan, cited above, § 56), the Court finds it difficult to accept that the Government acted in accordance with their obligations under Article 38 of the Convention.

Against this background and account being taken of its repeated guarantees of confidentiality, the Court also finds unacceptable the Government’s submission suggesting that for no good reason “the Court [had] refused to apprise itself of the document” or that sensitive information provided by them would be found “in documents that would be distributed openly in the public domain” (see paragraph 350 above).

375. Considering that part of the applicant’s complaints concerned the alleged ineffectiveness of the criminal investigation in breach of Articles 3 and 13, the documents from that investigation were required for the Court’s proper examination of the complaint (see paragraph 361 above). The Government openly conceded this (see paragraph 350 above).

Given the exceptional difficulties involved in the obtaining of evidence by the Court owing to the high secrecy of the US rendition operations, the limitations on the applicant’s contact with the outside world, including his lawyers, and his inability to give any direct account of the events complained of (see also paragraph 397 below), those documents were also important for the examination of his complaints under other provisions of the Convention. The Polish Government have had access to information capable of elucidating the facts as submitted in the application. Its failure to submit information in its possession must, therefore, be seen as hindering the Court’s tasks under Article 38 of the Convention. On these grounds, the Court is entitled to draw inferences from the Polish Government’s conduct in the present case (see paragraph 360 above and also Shamayev and Others, cited above, §§ 503-504).

376. Accordingly, the Court concludes that the Polish Government, by their refusals to comply with the Court’s evidential requests have failed to discharge their obligations under Article 38 of the Convention.

III. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE

A. The parties’ positions on the facts and evidence

377. The Government did not contradict the facts as related by the applicant.

In their written observations filed on 5 September 2012, they submitted that until the criminal investigation in Poland had been terminated they reserved their right to comment on and rectify the facts of the case as supplied to them when they were given notice of the application.

In their pleading of 15 March 2013 they stated the following: “the Polish Government do not contest in the proceedings before the Court the allegations submitted by the applicant’s plenipotentiaries, nor [do they] contest the alleged facts”.

At the oral hearing, the Government said that they were not prepared to affirm or negate the facts submitted by Mr Al Nashiri and Mr Abu Zubaydah because they believed that those facts should first be established and evaluated by the Polish judicial system. They added that, in contrast to the case of El-Masri, in these cases the Court was not confronted with two different versions of facts or differences in accounts of facts. Accordingly, in their view, there was no need for the Court to take the role of a first-instance court and to establish the facts of the cases itself before the domestic proceedings had been completed.

378. As regards the documentary and oral evidence obtained by the Court throughout the proceedings, the Government did not at any stage contest the admissibility, accuracy or credibility of the relevant materials and testimonies. Furthermore, at the hearing in camera held on 2 December 2013 (see paragraph 14 above), during which the parties were asked to state their positions on the oral evidence taken and on whether the parties could rely on that evidence at the public hearing, they confirmed that they had no objection to the parties’ referring at the public hearing to the testimony of the experts and the witness. In their words, “this [was] knowledge that [was] already accessible, albeit via other channels, in the public domain anyway”.

379. At the public hearing, in relation to that testimony, the Government drew the Court’s attention to the fact that both Senator Marty and Mr Fava had carried out inquiries which were not judicial proceedings. Those inquiries, they said, were “pre-procedural examinations” instituted for the purpose of corroborating the participation of the European countries in the CIA HVD Programme. They had not dealt with individual cases. In terms of the standard of proof they were not comparable to criminal proceedings. In contrast, the investigation in Poland was being conducted in order to obtain evidence concerning all possible offences, to establish individual perpetrators and to determine whether it was possible to bring an indictment to the court.

The Government admitted that the findings of the relevant international inquiries were a source of information about the potential evidence and indicated the direction for subsequent actions to be taken by prosecutors. However, they did not constitute evidence in the strict sense of the word and relying on them would not be sufficient for a prosecutor to bring a charge or indictment against an individual in respect of a specific offence.

380. Lastly, the Government, responding to a question from the Court at the hearing, concerning the injured party status accorded to the applicant and Mr Abu Zubaydah by the investigating prosecutor, explained that for a procedural decision to identify an individual as an injured party in criminal proceedings two elements had to be present. First, the subjective element, that is to say a person must have a sense of having suffered prejudice on account of the commission of an offence. The second, the objective element consisted in an indication that there existed a sufficient level of credibility that an offence had been committed to the detriment of that person in Poland. In the applicant’s case the credibility was sufficiently high for him to be treated as a victim of an offence and the investigation continued in order to determine the extent to which he had been harmed and by whom.

B. Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects

381. The applicant, in his submissions concerning Poland’s knowledge of the HVD Programme, the probative value of the evidence before the Court, the burden of proof and the standard of proof as applicable in the present case stated, in particular, as follows.

382. Numerous documents, including reports prepared by international organisations, recounted that on 4 December 2002 the CIA had transported Mr Al Nashiri on a plane registered N63MU from Bangkok to Szymany airport. The airport was just under an hour’s drive from Stare Kiejkuty.

Official documents disclosed by the Polish Border Guard, the 2007 Marty Report and other reports before the Court confirmed that this flight had landed on 5 December 2002 at Szymany airport. Mr Zubaydah’s submissions, which the applicant adopted in so far as they supported his claims, provided further evidence corroborating the fact that he and Mr Al Nashiri had been flown from Thailand to Poland on the same flight.

383. The material before the Court also confirmed that the applicant had been transferred from Poland to Rabat on a plane registered N379P on 6 June 2003.

Official documents disclosed by the Polish Air Navigation Service Agency and the Polish Border Guard, the 2007 Marty Report and the CHRGJ Report stated that rendition aircraft N379P had departed from Szymany airport on 6 June 2003 for Rabat with the assistance of the Polish authorities. The oral evidence from experts demonstrated how the Polish authorities had filed false flight plans and assisted in the cover-up of the CIA operations.

384. Evidence before the Court clearly showed that it had been Polish officials who had granted CIA rendition planes licences and overflight permissions as well as special exemptions. It had been the Polish authorities who had guided the planes in to land, and who had cleared the runway and secured the perimeter and grounds of Szymany airport so that detainees like Mr Al Nashiri could secretly be offloaded into vans bound for the secret prison.

In the Polish Air Navigation Services Agency, officials had assisted in disguising the existence and exact movements of incoming CIA rendition flights. Polish Border Guard officials had ensured that CIA flights were exempt from normal procedures for incoming foreign passengers. In the Customs Office officials had resolved irregularities in the payment of fees related to CIA operations. The manager of Szymany airport had provided significant information with respect to abnormal procedures allowed for rendition aircraft. The Court had heard expert testimony confirming that after a rendition operation - the very next day - Polish airport employees had been paid cash at a rate far higher than the usual rate.

385. The 2007 Marty Report showed that Polish officials had provided extraordinary physical security by setting up “buffer zones” around the CIA’s detainee operations. The same report confirmed that several high-ranking Polish officials had known about, and had authorised, Poland’s role in the secret CIA prison. The existence of an operational agreement between the Polish Intelligence Agency and the CIA had been mentioned in the 2007 Marty Report and various other material before the Court and had been confirmed by Senator Pinior’s testimony. The agreement had set out detailed rules for running the prison on Polish territory and a provision for what would have to be done if a detainee had died there. Prime Minister Leszek Miller and President Aleksander Kwaśniewski had reportedly received oral reports from Polish intelligence officials about what had been going on in that CIA prison, including on the fact that the United States had been detaining individuals there.

386. Senator Pinior had publicly said that he had information showing that the Polish Intelligence Unit at Stare Kiejkuty had commissioned a local contractor to build a prisoner’s cage. In his testimony to before the Court, he had confirmed that the cage had been built by a Polish company from Pruszków with specifications as to the thickness of the bars and size - the cage had been supposed to be big enough to hold a grown man and a portable toilet.

387. The applicant further stressed that at the fact-finding hearing the Court had heard cogent, credible and consistent evidence from four persons of the highest integrity and the highest professional calibre, who had demonstrated that:

1) there had been a secret CIA prison at Stare Kiejkuty from December 2002 to September 2003;

2) the applicant had been detained in that prison from 5 December 2002 to 6 June 2003; indeed, the fact that the applicant had been granted injured party status in the investigation by a decision which was non-discretionary but mandated by evidence confirmed the fact that the prosecutor was in possession of evidence that that would support his claims;

3) in Stare Kiejkuty the applicant had been tortured and subjected to unauthorised interrogation techniques specifically set out in the 2004 CIA Report;

4) Poland had known, or should have known, of the CIA prison on its territory. It had known because it had been directly involved and entered into a secret agreement with the USA to host that prison;

5) the Polish authorities had displayed a pattern and practice of obscuring the truth, and during the relevant international inquiries there had been an extreme reluctance on their part to disclose what had in fact happened.

388. The applicant concluded that he had met his burden of proof in the present case. In contrast to the “strong, clear and concordant” facts put forward by him, the Polish Government had failed to answer the Court’s questions on the merits. Where, as in the present case, “the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities”, the burden of proof could be regarded as resting on the authorities to provide a convincing explanation. Where, as here, the authorities had failed to provide a convincing explanation, failed to conduct an effective investigation and failed to furnish the Court with the necessary information, the Court was entitled to draw inferences adverse to the authorities and in favour of the applicant.

In addition, unrebutted presumptions of fact led to the conclusion that the applicant’s factual allegations were true. Indeed, the Government had conceded that they had not contested the facts as related by the applicant and his allegations.

389. Referring to knowledge imputable to any Contracting State at the relevant time, AI and the ICJ pointed out, among other things, to the following facts that had been a matter of public knowledge.

On 13 November 2001 US President George W. Bush signed a military order authorising the indefinite detention without trial, and without access to any court in the USA or elsewhere, of foreign nationals deemed by the President to be involved in international terrorism. In the same order, he had authorised military commissions, executive bodies in which the ordinary rules of criminal justice would not apply, for the trial of non-US nationals accused of broadly defined terrorism-related offences. On 21 March 2002 the US had published rules for the military commissions, which showed that these were purely executive bodies.

Reports of US renditions to secret detention were in the public domain as early as October 2001 and continued through 2003. It was widely disseminated that detentions at the Naval Base in Guantánamo Bay had begun in January 2002, and that by June 2003 there had been about 670 detainees held in that prison. By the same time it was also known that those who had been transferred to Guantánamo had included individuals picked up far from Afghanistan.

In major reports issued in April and June 2002 AI had warned that the USA was engaging in arbitrary detainee transfers into and from its custody and that some individuals had disappeared into secret US detention.

The 2003 AI report documented that there were over 600 detainees then at Guantánamo and reported on the USA’s recourse to secret detention and transfer of detainees to possible torture in third countries. The report and documents published during 2002 provided further credible evidence of the USA’s use of detention and rendition in the context of the “war on terror”, including the use of undisclosed and incommunicado detention by US forces in Afghanistan.

390. In short, during 2002 and 2003 credible information emerged that the USA had committed and was continuing to commit gross human rights violations, including enforced disappearances by means of arbitrary, incommunicado and secret detention outside US territory as well as secret detainee transfers, in respect of individuals whom the US authorities suspected of involvement in or having knowledge of international terrorism.

Thus, by June 2003 any State would have known that the USA was engaging in the use of the death penalty; the secret detention of individuals it suspected of involvement in or having information about international terrorism; the holding of individuals incommunicado or virtually incommunicado in indefinite military detention without charge or trial; and preparations to subject individuals to an unfair trial by military commission, at Guantánamo, or elsewhere, without access to civilian courts, including in respect of individuals facing capital charges.

C. The Court’s conclusion on the lack of dispute as to the facts and evidence

391. The Court notes that the Government did not take advantage of the opportunity to make comments on the facts as supplied by the applicant and that it was not their intention to contest them. It also notes that they did not challenge the admissibility, accuracy or credibility of documentary and oral evidence obtained by the Court throughout the proceedings (see paragraphs 377-379 above).

Consequently, the Court will proceed on the basis of there being no contestation as such by the Government as to the facts of the case as put forward by the applicant and no discernible dispute between the parties as to the evidence from various sources which was admitted by the Court and summarised above (see paragraphs 41-338 above).

D. The Court’s assessment of the facts and evidence

392. With respect to the assessment of the facts and evidence gathered in the present case, the Court would first wish to reiterate the relevant principles.

1. Applicable principles deriving from the Court’s case-law

393. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva, cited above, no. 7615/02, § 113; Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; and El-Masri, cited above, § 154.)

394. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention - to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention - conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions.

According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151).

395. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; and Aslakhanova and Others, cited above, § 97).

396. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115, ECHR 2006-XIII (extracts); El-Masri, cited above, § 152).

In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, ibid.).

2. Preliminary considerations concerning the assessment of the facts and evidence in the present case

397. The Court observes at the outset that, in contrast to many other previous cases before it involving complaints about torture, ill-treatment in custody or unlawful detention, in the present case it is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (for example, compare and contrast with El-Masri, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, §§ 13-24, ECHR 1999-V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006-IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004-VII).

As stated in the application, since the end of October 2002, when the applicant was captured by the CIA in Dubai, he has continually been in the custody of the US authorities, initially in the hands of the CIA in undisclosed detention at various black sites and then, as confirmed by President Bush on 6 September 2006, in the custody of US military authorities in Guantánamo (see paragraphs 71 and 83-127 above).

398. The regime applied to High Value Detainees in CIA custody such as the applicant is described in detail in the CIA documents and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. It “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”. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see paragraphs 51, 62-70,101-102 and 281-282 above).

399. It is submitted that since an unknown date in October 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the military commission’s members and his US counsel. In this regard, the Court also takes note of the statement by the applicant’s representative at the public hearing:

“[The applicant] is gagged from speaking publicly of his own torture in Poland because the United States takes the remarkable position that disclosure of his own memories, observations and experiences of what happened to him would reveal classified sources and methods. In addition, US regulations prevent his US lawyer, Ms Hollander, who is also counsel in this case, from addressing the issues before this Court.”

400. The above circumstances have inevitably had an impact on the applicant’s ability to plead his case before this Court. Indeed, in his application the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources.

The difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant’s communication with the outside world and the extreme secrecy surrounding the US rendition operations have been compounded by the Polish Government’s failure to cooperate with the Court in its examination of the case.

In consequence, the Court’s establishment of the facts is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, other public sources and evidence from the experts and the witness (see paragraphs 15, 42-43, 49-77 and 213-338 above).

3. Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory

401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as “High-Value Detainees”, in its custody and that they were interrogated at a CIA black site with the use of the EITs - the applicant immediately after his arrival at that place on 15 November 2002 (see paragraphs 83-90 above).

Those documents also attest to the fact that as from 15 November 2002 the applicant and Mr Abu Zubaydah were held in the same detention facility, that they were interrogated by apparently the same team of “psychologist/interrogators”, that their interrogations were videotaped and that the series of the applicant’s enhanced interrogations, including the so-called “waterboarding”, “continued through 4 December 2002” (see paragraphs 85-89 above).

402. The CIA material further confirm in the cables of 3 and 9 December 2002 that this specific detention facility was closed following an inventory of the videotapes recording the enhanced interrogations of Mr Al Nashiri’s and Mr Abu Zubaydah’s. The inventory was carried out on 3 December 2002. No CIA cables from that location were sent to the Headquarters after 4 December 2002 (see paragraphs 89-90 above). The 2009 DOJ Report states that, after the enhanced interrogations of Mr Al Nashiri which, as noted above, continued at that black site until 4 December 2002, both he and Mr Abu Zubaydah were moved to “another CIA black site”. The same fact is mentioned in the 2004 CIA Report (see paragraphs 87-88 above).

403. Senator Marty and Mr J.G.S., the experts who gave evidence to the Court, in their presentation at the fact-finding hearing explained in detail the above sequence of events with reference to documentary evidence available in the public domain, in particular the material released by the CIA. They identified the CIA detention facility in which the applicant and Mr Abu Zubaydah had been held during the period under consideration as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok. They conclusively confirmed that the closure of the site and interruption of Mr Al Nashiri’s interrogation schedule on 4 December 2002 indicated the date of his physical transfer by means of the HVD rendition out of the black site in Thailand to another black site (see paragraphs 314-315 above).

404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture, was detained in the CIA detention facility in Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was also held in the same facility at that time and that they were both moved together to “another CIA black site” on 4 December 2002 (see Husayn (Abu Zubaydah), cited above, § 404).

405. It is alleged that on 5 December 2002 the applicant, together with Mr Abu Zubaydah, had been transferred by the CIA under the HVD Programme from Thailand to Poland on a CIA contracted aircraft, registered as N63MU with the US Federal Aviation Authority. The flight flew on 4 December 2002 from Bangkok via Dubai and landed at Szymany airport on 5 December 2002. The applicant was then secretly detained in the Polish intelligence training base at Stare Kiejkuty.

It is further alleged that during his undisclosed detention in Poland the applicant was subjected to torture and various other forms of ill-treatment and deprived of any contact with his family. He was held in Poland until 6 June 2003. On that date he was secretly transferred by the CIA from Poland to Rabat on a rendition plane with tail number N379P (see paragraphs 91-106 above).

(i) Transfers and secret detention

406. The Court notes that the fact that after 4 December 2002 the applicant and Mr Abu Zubaydah were detained together to the same detention facility is conclusively confirmed in paragraph 91 of the 2004 CIA Report. The paragraph states that the same “interrogation team” was “to interrogate Al Nashiri and debrief Abu Zubaydah” and that “the interrogation team continued EITs on Al Nashiri for two weeks in December 2002” (see paragraph 99 above).

407. As regards the aircraft indicated by the applicant, the Court observes that there is abundant evidence identifying them as rendition planes used by the CIA for the transportation of detainees under the HVD Programme. That evidence includes data from multiple sources, such as flight plan messages by Euro Control and information provided by the Polish Border Guard and the Polish Air Navigation Services Agency (“PANSA”), which was released and subsequently analysed in depth in the course of the international inquiries concerning the CIA secret detentions and renditions (see paragraphs 92-94, 258, 271 and 287-291 above).

408. In the light of that accumulated evidence, there can be no doubt that:

1) the N63MU, a Gulfstream jet with capacity for 12 passengers, flew on 4 December 2002 from Bangkok via Dubai to Szymany and landed there on 5 December 2002 at 14.56. The Polish Border Guard’s official documents recorded that on arrival there were eight passengers and four crew and that the plane departed from Szymany on the same day at 15:43 with no passengers and four crew;

2) the N379P, also known as “Guantánamo Express”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco. The Polish Border Guard’s official documents recorded that on arrival there was one passenger and two crew and on departure there were no passengers and two crew.

409. As regards transfers of High-Value Detainees between CIA black sites, the CIA declassified documents give, in meticulous detail, a first-hand account of the standard procedures applied to them. The transfer procedure is also related in the 2007 ICRC Report, which compiled consistent and explicit descriptions given by the fourteen High-Value Detainees, including the applicant (see paragraphs 64 and 282 above).

Nothing has been put before the Court to the effect that upon and during his transfer to and from “another black site” on, respectively, 4-5 December 2002 and 5 June 2003, the applicant could have been subjected to less harsh treatment than that defined in the strict and detailed rules applied by the CIA as a matter of routine. It accordingly finds it established beyond reasonable doubt (see paragraph 394 above) that for the purposes of his transfers on 4/5 December 2002 and 6 June 2003:

1) the applicant was photographed both clothed and naked prior to and again after the transfer;

2) he underwent a rectal examination and was made to wear a diaper and dressed in a tracksuit;

3) earphones were placed over his ears, through which loud music was sometimes played;

4) he was blindfolded with at least a cloth tied around the head and black goggles;

5) he was shackled by his hands and feet, and was transported to the airport by road and loaded onto the plane;

6) he was transported on the plane either in a reclined sitting position with his hands shackled in front of him or lying flat on the floor of the plane with his hands handcuffed behind his back;

7) during the journey he was not allowed to go to the toilet and, if necessary, was obliged to urinate or defecate into the diaper.

In that regard, the Court would also note that a strikingly similar account of his transfers in CIA custody was given by the applicant in El-Masri (see El-Masri, cited above, § 205).

410. As regards the applicant’s actual presence in Poland, the Court takes due note of the fact that there is no direct evidence that it was the applicant who was transported on board the N63MU flight from Bangkok to Szymany on 5 December 2002 or that he was then taken from Szymany to other CIA secret detention facilities on board N379P on 6 June 2003.

The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been enabled to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever on his own be able to identify the places in which he was held. Also, having regard to the very nature and extreme secrecy of the CIA operations in the course of the “war on terror” and to how the declassification of crucial material demonstrating the CIA activities at that time currently stands - this being a matter of common knowledge - , no such direct evidence will soon be forthcoming in this regard.

411. No trace of the applicant can, or will, be found in any official records in Poland because his presence on the plane and on Polish territory was, by the very nature of the rendition operations, purposefully not to be recorded. As unequivocally confirmed by the expert, the Border Guard’s records showing numbers of passengers and crew arriving and departing on the rendition planes in question “neither include[d], nor purport[ed] to include detainees who were brought into or out of Polish territory involuntarily, by means of clandestine HVD renditions” and those detainees “were never listed among the persons on board filed vis-à-vis any official institution” (see paragraph 328 above).

412. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained in Poland at the relevant time, the Court has taken into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 401-404 and 408-409 above) and analysed other material in its possession, including, in particular, the expert evidence reconstructing the chronology of rendition and detention of the applicant and Mr Zubaydah in 2002-2003 (see paragraphs 314-318 above).

413. It has already been established that on 4 December 2002 the applicant was transferred from the black site in Bangkok together with Mr Abu Zubaydah and that they were subsequently detained in the same CIA detention facility (see paragraph 404 above). The date of the transfer coincides exactly with the path followed by the N63MU, which took off from Bangkok on 4 December 2002 and then, after the stopover in Dubai, arrived in Szymany on 5 December 2002 (see paragraphs 92, 392 and 316 above).

The flight was the subject of protracted and intense investigations by the experts who gave evidence to the Court, who had investigated it “in its most intricate detail from its planning and authorisation to its execution through multiple, different corporate shells”. They found no alternative explanation for its landing in Szymany other than the transfer of the applicant and Mr Abu Zubaydah from Bangkok to “another black site”, which they categorically identified as the one codenamed “Quartz” and located at the Polish intelligence training base in Stare Kiejkuty near Szymany (see paragraphs 316-317 and 327 above)

414. The Court notes that the Polish Government have offered no explanation for the nature of, the reasons for, or the purposes of the landing of the N63MU on their territory on 5 December 2002, a plane which in all the relevant reliable and thorough international inquiries was conclusively identified as the rendition aircraft used for transportation of High-Value Detainees in CIA custody at the material time (see paragraph 407 above, with further references).

Nor have they explained the reasons for the subsequent series of landings of the CIA rendition aircraft (see paragraph 292 above). The landing of N63MU on 5 December 2002 was followed by five further landings of the N379P (the “Guantánamo Express”), the most notorious CIA rendition plane. One of those landings took place on 6 June 2003 - the date indicated by the applicant as that of his transfer from Poland and conclusively confirmed by the experts as that on which he had been transferred out of Poland (see paragraphs 292 and 328 above). The series ended with the landing of N313P on 22 September 2003 - the date indicated by Mr Abu Zubaydah for his transfer from Poland, confirmed by the experts as the date of his transfer out of Poland and identified by them as the date on which the black site “Quartz” in Poland had been closed (see paragraphs 317-318 above and also Husayn (Abu Zubaydah), cited above, § 414). Indeed, no other CIA-associated aircraft appeared in Szymany after that date (see paragraph 292 above).

415. In view of the lack of any explanation by the Government as to how the events in the present case occurred and their refusal to disclose to the Court documents necessary for its examination of the case (see paragraphs 17-40 and 375 above), the Court will draw inferences from the evidence before it and from the Government’s conduct (see also paragraphs 360 and 395 above).

Consequently, on the basis of unrebutted facts and in the light of all the relevant documentary material in its possession and the coherent, clear and categorical expert evidence explaining in detail the chronology of the events occurring in the applicant’s case between 4-5 December 2002 and 6 June 2003, the Court finds that the applicant’s allegations to the effect that during that time he was detained in Poland are sufficiently convincing.

(ii) The applicant’s treatment in CIA custody in Poland

416. Lastly, as regards the applicant’s treatment in CIA custody over the period under consideration, a detailed description of “unauthorised techniques” applied to him by a CIA “senior operation officer” or “debriefer” in December 2002 and January 2003 comes from the most authoritative sources: the 2004 CIA Report and the 2009 DOJ Report (see paragraphs 99-100 above). This is supplemented by the applicant’s own account of the ordeal as rendered in the 2007 ICRC Report (see paragraph 101 above). Senator Marty and Mr J.G.S. also gave an account of those events based on the relevant documentary evidence (see paragraph 317 above).

According to all these sources, in December 2002 and January 2003 in CIA custody the applicant was subjected to the “enhanced” and “unauthorised” interrogation techniques. As regards the latter, he was subjected to the following treatment:

1) mock executions with the use of a handgun when he sat shackled and with the use of a power drill during which he stood naked and blindfolded;

2) stress positions: he was required to kneel on the floor and lean back, he was held in a stress standing position and pushed when and lifted off the floor by his arms while his arms were bound behind his back with a belt;

3) threats;

4) during interrogations cigar smoke was blown into his face;

5) stiff brush was used to bathe him in the manner intended to induce pain;

6) standing on his shackles, resulting in cuts and bruises.

(iii) Court’s conclusion

417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

4. Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme

(a) Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities

418. Several sources of evidence obtained by the Court confirm that the Polish authorities followed a special procedure for the landing of CIA rendition flights in Szymany.

That procedure was related before the TDIP by an eye-witness, a certain Ms M.P., who had been the manager of Szymany airport at the material time (see paragraphs 293-302 above). On the basis of her detailed account and statements from other persons, including the former director of Szymany airport and the former Chairman of the Board of that airport, the summary description of that procedure was included in the Fava Report (see paragraph 271 above). Furthermore, the 2007 Marty Report contained a compilation of testimonies obtained from confidential sources among Szymany airport employees, civil servants, security guards, and Border Guard and military intelligence officials, who had given an account of what had happened at the time immediately following the landing of the CIA-associated aircraft landed in Szymany (see paragraph 260 above).

The above-mentioned accounts of the special procedure, which are concordant and complementary, can be summarised as follows:

1) all the landings were preceded by a telephone call to Szymany airport from the Warsaw Headquarters of the Border Guard or a military intelligence official, informing the authorities of the airport of an arriving “American aircraft”;

2) the army was informed at the same time and two military officials were on duty in the airport at that time;

3) prior to the landings two high-ranking Border Guard officers always appeared in the airport;

4) orders were given directly by the Border Guard, emphasising that the airport authorities should not approach the aircraft and that the military staff and services alone were to handle them;

5) the airport manager was instructed to adhere to strict protocols to prepare for the flights, including clearing the runways of all other aircraft and vehicles, and making sure that all Polish staff were brought in to the terminal building from the vicinity of the runway, including local security officials and airport employees;

6) the role of the airport personnel was only to complete the technical arrangements after the landing;

7) the planes were treated as military planes and were not subjected to customs clearance; the military character of the flight was determined by the Border Guard and the relevant procedure was to be followed by the airport staff;

8) the perimeter and grounds of the airport were secured by military officers and the Border Guard;

9) the aircraft touched down in Szymany and taxied to a halt at the far end of the runway, several hundred metres (and out of visible range) from the four-storey terminal control tower; it always parked with the doors facing towards the wood;

10) the passengers never entered the airport;

11) the Border Guard approached the aircraft first and then drove away;

12) the “landing team” waited at the edge of the runway, in two or three vans with tinted windows, bearing the Stare Kiejkuty army unit’s registration plates; the vans, with their engines often running, were parked in close proximity to the aircraft;

13) after the Border Guard drove away, the vans with tinted windows drove up to the aircraft and then drove away;

14) the planes left shortly afterwards;

15) the landing fees were paid to the airport in cash by a Pole (or a person who spoke Polish very well) the next day and were considerably higher - several times more - than those normally applicable (between 2,000 and 4,000 euros (EUR) per plane), including an amount for “non-standard handling”.

(b) Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA

419. Several sources of evidence obtained by the Court reveal that, in addition to granting the CIA rendition aircraft overflight permissions and navigating the planes through Poland’s airspace, the Polish authorities, including PANSA, accorded them special status, various exemptions and authorisations. They also cooperated with the CIA in disguising the aircraft’s actual routes and validated incomplete or false flight plans which served to cover-up the CIA activities in Poland, in contravention of international aviation regulations (see paragraphs 258, 271 and 291 above).

420. As explained in the 2007 Marty Report and by Senator Marty and Mr J.G.S. orally before the Court, Jeppesen, a usual provider of services for the CIA for rendition flights (see also paragraphs 72-74 above), filed multiple false - “dummy” - flight plans for those flights, including the landings in Poland. Those plans often featured an airport of departure and/or destination that the aircraft never intended to visit. In at least four out of six instances of the CIA aircraft landings in Szymany, including the landing of N63MU on 5 December 2002 with the applicant and Mr Abu Zubaydah on board (see paragraphs 408 and 417 above), flight plans were disguised, false plans were filed and PANSA navigated the aircraft into Szymany without a valid flight plan (see paragraphs 258 and 316 above).

421. A detailed analysis of the rendition circuit of the flight N379P, including the stopover in Szymany on 6 June 2003 is included in the CHRGJ Report. That report explains how the aircraft made the entire circuit under various forms of exemption and special status, which indicated that the flights were planned and executed with the full collaboration of the US authorities and the “host” States through which the N379P travelled. Such exemptions are only granted when specifically authorised by the national authority whose territory is being used (see paragraph 291 above).

422. On 5 June 2003 PANSA navigated the N379P into Szymany, despite the fact that all relevant flight plans named Warsaw as the airport of destination. The fact that PANSA accepted Jeppesen’s flight plan naming Warsaw but navigated the plane to Szymany demonstrated that the Polish authorities did not require it to comply with international aviation regulations and that they knowingly issued a false landing permit. In consequence, the rest of the aviation monitoring community, including Eurocontrol, mistakenly recorded the aircraft’s stopover in Warsaw (see paragraphs 258, 291 and 316 above).

(c) The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials

423. Several sources of evidence before the Court have suggested the existence of a special bilateral agreement between Poland and the USA on the setting up and running of a secret prison in Poland.

424. The 2007 Marty Report, based on evidence from confidential sources, states that the CIA brokered an “operating agreement” with Poland to hold its High-Value Detainees in a secret detention facility and that Poland agreed to “provide the premises in which [that facility was] established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference” (see paragraphs 254-255 above).

In the context of the authorisation of Poland’s role in the CIA rendition operations, the 2007 Report mentioned a number of names of the Polish high-ranking officials, stating that they had known and authorised the country’s role “in the CIA operation of secret detention facilities for High-Value Detainees on Polish territory” and that they “could therefore be held accountable for these activities” (see paragraph 257, see also paragraph 240 above).

Senator Marty confirmed those statements before the Court and added that the operation had been organised within the framework of NATO. It had been decided that the CIA would be in sole charge of the operation and, if requested, the member countries would provide cooperation. As regards the specific names of Polish officials that had been given in the 2007 Marty Report, he explained that they had been indicated “because the sources that [had] provided us with these names [had been] of such value, they [had been] so authoritative and there [had been] so much concurring evidence of the involvement of those persons” (see paragraph 321 above).

425. Mr J.G.S., when heard by the Court, said that whilst in the course of the Marty Inquiry they had not seen the classified documents in question, they had been made aware of the existence of authorising agreements, which granted extraordinary protections and permissions to the CIA in its execution of the rendition operations (see paragraph 329 above).

426. Senator Pinior, both in his affidavit and oral testimony before the Court, stated that he had been informed by an authoritative confidential source of a document - a draft prepared by the Polish intelligence - drawn up under the auspices of Mr Miller’s Government for the purpose of regulating the operation of the CIA prison in Poland. According to him, that document, which was currently in the Polish prosecution authority’s possession, contained precise regulations concerning the functioning of the prison and, among other things, a proposed protocol for action in the event of a prisoner’s death. The word “detainees” was used in the text. The draft had not been signed on behalf of the US (see paragraphs 303 and 334 above).

427. The 2007 EP Resolution “note[d] with concern” that the Polish authorities’ official reply of 10 March 2006 to the to the Secretary General of the Council of Europe, “indicate[d] the existence of secret cooperation agreements initialled by the two countries’ secret services’ themselves, which exclude[d] the activities of foreign secret services from the jurisdiction of the Polish judicial bodies” (see paragraph 275 above).

428. The Court does not find it necessary for its examination of the present case to establish whether such agreement or agreements existed and if so, in what format and what was specifically provided therein.

It considers that it is inconceivable that the rendition aircraft crossed Polish airspace, landed in and departed from a Polish airport and that the CIA occupied the premises in Stare Kiejkuty without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed.

(d) Poland’s lack of cooperation with the international inquiry bodies

429. The Court considers that the respondent State’s lack of cooperation in the course of the international inquiries into the CIA rendition operations in Europe undertaken in 2005-2007 is an element that is relevant for its assessment of Poland’s alleged knowledge of, and complicity in, the CIA rendition operations.

430. To begin with, in their response dated 10 March 2006 to the Secretary General of the Council of Europe’s questions in the procedure launched under Article 52 of the Convention, the authorities “fully denied” the allegations of “the alleged existence in Poland of secret detention centres and related over-flights (see paragraph 242 above; the relevant letter is also mentioned above in paragraph 427 above). In that regard, they relied on the findings of “the Polish Government’s internal inquiry”. It is not clear what kind of “internal inquiry” was carried out and whether the authorities in fact meant the Parliamentary inquiry conducted in November-December 2005 (see paragraph 128 above) but, be that as it may, they could not have been unaware of the CIA operations in the country in 2002-2003 (see paragraphs 423-428 above).

431. A similar obstructive attitude was displayed during the Marty Inquiry. In the 2006 Marty Report it was noted that “the Polish authorities ha[d] been unable, despite repeated requests, to provide [the rapporteur] with information from their own national aviation records to confirm any CIA-connected flights into Poland” (see paragraph 248 above). The 2007 Marty Report noted that “in over eighteen months of correspondence, Poland ha[d] failed to furnish [the] inquiry with any data from its own records confirming CIA-connected flights into its airspace or airports” (see paragraph 259 above).

Senator Marty, at the fact-finding hearing, added that “Poland [had been] no exception” and that practically all governments that [had] had links with the secret detention centres or with ‘extraordinary rendition’ not only [had] not cooperate[d] but [had done] everything that they could in order to stifle the truth, to create obstacles in the search for the truth” (see paragraph 320 above).

432. The conduct adopted by the authorities in respect to the Fava Inquiry was no different. The Fava Report explicitly stated that the Polish authorities cooperation with the TDIP delegation had been “regrettably poor”, that the delegation had not been able to meet any representatives of Parliament and that the Government had been “reluctant to offer full cooperation ... and receive [the] delegation at an appropriate political level”. It was also noted that there had been confusion about flight registers of CIA planes transiting through Poland and contradictory statements about the existence of flight logs (see paragraph 270 above). The same observations were made in the 2007 EP Resolution (see paragraph 275 above).

In his testimony before the Court, Mr Fava stated that the Polish Government had “cooperated very little” with the TDIP and that almost all representatives of the Government whom they had asked for a meeting had declined the TDIP’s request. He also confirmed that during his visit to Poland with the TDIP delegation he had “definitely” had the impression that there had been attempts on the authorities’ part to conceal information (see paragraph 308 above).

433. Having regard to the above facts, the Court finds that in the course of the relevant international inquiries the Polish authorities displayed conduct that can be characterised as denial, lack of cooperation with the inquiry bodies and marked reluctance to disclose information of the CIA rendition activities in Poland.

(e) Informal transatlantic meeting

434. Mr Fava, in his oral testimony described in detail a document - the records or “the debriefing” of the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the US Secretary of State Condoleezza Rice, which had taken place on 7 December 2005. The meeting was convened in connection with recent international media reports concerning the CIA secret detentions and rendition, naming European countries that had allegedly had CIA black sites on their territory. The debriefing, obtained by the TDIP from a credible confidential source in the offices of the European Union, confirmed that the member States had had knowledge of the CIA rendition programme and there had been an “animated discussion” on the practices applied by the CIA. While Mr Fava could not recall whether there had been any intervention by the Polish Government at that meeting, he said that it had appeared from Ms Rice’s statement “we all know about these techniques” that there had been an attempt on the USA’s part to share “the weight of accusations” (see paragraph 306 above).

(f) Relations of cooperation between the Polish intelligence and the CIA

435. The Court further notes that Mr Fava also referred to the meeting held in the context of the Fava Inquiry with the former Polish head of the security service who, “although ... with great diplomacy”, had confirmed that the CIA officials often landed in Szymany and that the Polish intelligence and the CIA had had “frequent relations of cooperation ... consisting in sharing certain practices and objectives” (see paragraphs 269 and 310 above).

436. Former President of Poland, Mr Kwaśniewski, in his press interview given on 30 April 2012, also referred to the “intelligence cooperation” with the CIA and stated that “the decision to cooperate with the CIA carried the risk that the Americans would use inadmissible methods” (see paragraph 240 above).

(g) Circumstances surrounding detainees transfer and reception at the black site

437. Having regard to the procedure for High-Value Detainees’ transfers under which, as established above, a detainee such as the applicant was blindfolded, wore black goggles and was shackled by his hands and feet for the duration of his transfer (see paragraphs 64, 282 and 409 above), the Court considers that those of the Polish authorities who received the CIA personnel on the Szymany airport runway, put them on the vans and drove them to the black site could not be unaware that the persons brought there with them were the CIA prisoners.

In particular, the Court finds it inconceivable they would not have seen or, as described by Mr J.G.S., “witnessed ... the unloading of bound and shackled detainees from aircraft” (see paragraph 330 above).

(h) Other elements

438. There are also other elements that the Court considers relevant for its assessment of Poland’s knowledge of the nature and purposes of the CIA activities on its territory at the material time.

As recounted by Senator Pinior in his affidavit and subsequently confirmed in his oral testimony given to the Court, “in the period when the CIA prisoners were detained in Stare Kiejkuty” the authorities of the military base ordered from a Polish company a metal cage of the size fitting a grown man with the option of adding a portable chemical toilet (see paragraphs 303 and 335 above). No explanations have been offered by the respondent Government as to what kind of purposes that cage was to serve.

Furthermore, there were, as pointed out by one of the experts (see paragraph 330 above), other aspects of the CIA activity in Poland that were extraordinary from the perspective of the normal operation of an airport like Szymany.

For instance, the landing of the Boeing 737 (N313P on which Mr Abu Zubaydah was transferred from Poland; see Husayn (Abu Zubaydah), cited above, §§ 408, 419 and 440) on 22 September 2003 at Szymany took place despite the fact that the airport did not have the necessary technical conditions for receiving such a large aircraft, in particular the facilities to refuel it, and the fact that the airport fire brigade was not adequately equipped for that purpose (see paragraphs 295 and 318 above). In the view of Ms M.P., the airport manager at the relevant time, “there must have been some very pressing reasons” for allowing that landing (see paragraph 296 above).

On another occasion in the winter, notwithstanding the severe weather conditions and the fact that snow had not been cleared at the airport for six weeks, the airport management were not in a position to refuse the CIA aircraft’s landing and had to clear the runway because “if the aircraft concerned did not land, ‘heads w[ould] roll’” (see paragraph 300 above).

For the airport civilian staff, the landing of the CIA aircraft was a “major event”. Despite the fact that they were excluded from the handling of the aircraft and were taken to the airport terminal building during the CIA landings and departures (see paragraph 418 above), they perceived those events as “spies” coming or a “changeover of intelligence staff” (see paragraph 297 above).

(i) Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody

439. Lastly, the Court attaches importance to the fact that already between January 2002 and August 2003 ill-treatment and abuse to which captured terrorist suspects were subjected in US custody at different places, including Guantánamo Bay or Bagram base in Afghanistan was largely in the public domain through numerous statements or reports of international organisations (see paragraphs 214-228 and 389-390 above).

At the material time that topic was also present in the international and Polish media, which paid considerable attention to the situation of Al’Qaeda prisoners in US custody (see paragraphs 230-239 above).

5. Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme

440. The Court has taken due note of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which High-Value Detainees were subjected in CIA custody evolved over time (see paragraphs 47-71, 78-81, 214-239, 241-261, 266-275 and 281-286 above). In particular, the CIA’s various secret or top secret documents, including the 2004 CIA Report, the CIA Background Paper and the 2009 DOJ Report - which, in the present case and in Husayn (Abu Zubaydah), are among important items of documentary evidence relevant for the establishment of the facts relating to both applicants’ rendition, secret detention and treatment by the US authorities - were disclosed to the public, in a heavily redacted form, as late as 2009-2010 (see paragraphs 49-50, 57 and 62 above). The 2007 ICRC Report, including the applicant’s account of the treatment and material conditions of detention to which he was subjected under the HVD Programme, was leaked into the public domain in 2009 (see paragraph 277 above). The reports following the Marty Inquiry and the Fava Inquiry emerged earlier, in 2006-2007 (see paragraphs 246-261 and 266-272), but this was between three and a half and five years after the events complained of. As stated by Senator Marty, even “the picture provided by the 2007 [Marty] Report is still very much a partial one”, having regard to the subsequent developments, such as the publication of the CIA materials and the availability of statements from detainees (see paragraph 323 above).

As already stated above (see paragraphs 42 and 397-400 above), the Court has relied extensively on those sources of evidence in its retrospective reconstruction and establishment of the facts concerning the applicant’s transfers to and from Poland and his secret detention and ill-treatment by the CIA in Poland. However, the Polish State’s knowledge of and complicity in the HVD Programme must be established with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is, between December 2002 and June 2003 in respect of the applicant and between December 2002 and September 2003 in respect of Mr Abu Zubaydah.

441. In that regard, the Court has taken into account the various attendant circumstances referred to above (see paragraphs 418-439 above). In the Court’s view, those elements taken as a whole demonstrate that at that time the Polish authorities knew that the CIA used its airport in Szymany and the Stare Kiejkuty military base for the purposes of detaining secretly terrorist suspects captured within the “war on terror” operation by the US authorities. It is inconceivable that the rendition aircraft could have crossed Polish airspace, landed in and departed from a Polish airport, or that the CIA occupied the premises in Stare Kiejkuty and transported detainees there, without the Polish State being informed of and involved in the preparation and execution of the HVD Programme on its territory. It is also inconceivable that activities of that character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Polish territory without Poland’s knowledge and without the necessary authorisation being given at the appropriate level of the State authorities.

The Court would again refer to the testimony given by the experts who, in the course of their inquiries, had the benefit of contact with various, including confidential, sources. They all stated, in unambiguous terms, that at the relevant time Poland had had, or should have had, knowledge of the CIA rendition operations. Poland had ensured the security of the area and had collaborated in concealing the rendition flights. The Polish officials’ liaison units must have been aware of the preparation or execution of particular operations and their timing. They had known that the CIA interrogations had contributed intelligence to the United States’ war on terror (see paragraphs 307, 321-323, 326 and 330-331 above).

This did not mean, in the experts’ view, that the Polish authorities had known the details of what went on inside the black site, since the interrogations had been the exclusive responsibility of the CIA, or that they had witnessed treatment to which High-Value Detainees had been subjected in Poland (see paragraphs 322-323 and 330-331 above). The Court, being confronted with no evidence to the contrary, accepts the experts’ above-mentioned assessment.

Notwithstanding the foregoing proviso as to the lack of direct knowledge of the treatment to which the applicant was subjected in Poland, as noted above, already between January 2002 and August 2003 numerous public sources were consistently reporting ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in different places. Moreover, in the 2003 PACE Resolution adopted in June 2003 - of which Poland, as any other Contracting State was aware - the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities. All these sources reported practices resorted to or tolerated by the US authorities that were manifestly contrary to the principles of the Convention (see paragraphs 214-224, 229-239 and 389-390 above). Consequently, there were good reasons to believe that a person in US custody under the HVD Programme could be exposed to a serious risk of treatment contrary to those principles (see also El-Masri, cited above, § 218).

442. Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a) that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b) that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also El-Masri, cited above, §§ 217-221).

443. Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined .... in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

IV. RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME

444. No comments on the matter have been received from the Government.

B. Third-party intervener - AI/ICJ

445. The applicant submitted that Poland was responsible under Article 1 of the Convention for the violation of his rights because it had knowingly, intentionally and actively collaborated with the CIA in the rendition programme.

Relying on El-Masri (cited above), he emphasised that Poland must be regarded as responsible under the Convention for acts performed - with its acquiescence and connivance - by foreign officials on its territory. Also, as had emerged from the Court’s case-law, the Polish State had a positive obligation to protect detainees within its jurisdiction from ill-treatment contrary to Article 3.

Poland had been aware that those transferred to, detained on and transferred from its territory under the HVD Programme would be subjected to practices manifestly inconsistent with the Convention, yet it had permitted this detention and transfer outside any formal legal procedures. Since Poland had actively facilitated the applicant’s detention and transfer, it was also responsible for his ill-treatment and unlawful, secret detention for the period following his transfer from Poland.

446. Poland was likewise responsible for cooperation in internationally wrongful acts under international law, in particular under the ILC Articles (see paragraph 207 above). In that respect, the applicant subscribed to AI’s and the ICJ’s comments on the matter (see paragraphs 447-450 below).

447. AI and the ICJ submitted that any Contracting Party’s responsibility under the Convention for co-operation in renditions and secret detentions should be established in the light of international law principles of State responsibility.

In accordance with Article 16 of the ILC Articles, the responsibility of Contracting Parties that had co-operated in the rendition and secret detention programme could be established from the point where those States had had actual or constructive knowledge of the violations of international human rights obligations inherent in that programme; and where the action of the Contracting Party had contributed to the apprehension, transfer or continued detention of an individual within the programme. Furthermore, in the Court’s jurisprudence, for example in Ireland v. the United Kingdom (cited above § 159) or Ilaşcu and Others (cited above, § 318) and under Article 7 of the ILC Articles, the co-operation of government agents, even without the authorisation of the government, engaged the responsibility of the State (see also paragraph 207 above).

448. State responsibility might arise from either active co-operation in or passive tolerance of, renditions or secret detentions. Under international law, responsibility for assistance in an internationally wrongful act might arise either from positive steps taken to assist another State in a wrongful act, or from failure to take action, required by international legal obligations, that would have prevented a wrongful act by another State.

Consistent with these principles, the Convention imposed responsibility on States for both acts and omissions that entailed co-operation in acts contrary to the Convention. Under the positive obligations doctrine, States had obligations to take measures to prevent action by third parties leading to violations of Convention rights. A State’s positive obligation to prevent would be breached where the State “knew or ought to have known” that the individual in question was at real and immediate risk of violation of his or her Convention rights, and failed to take reasonable measures of protection.

449. Thus, acts of co-operation by officials of Contracting Parties in renditions or secret detentions by the agents of a foreign State leading to arbitrary detention, enforced disappearances, torture or other ill-treatment, would engage the Convention responsibility of the Contracting Party. In addition, failure to take effective measures to prevent such operations, in circumstances where the State authorities knew or ought to have known of the risk that they would be carried out, would breach the State’s positive obligations under the Convention read in the light of Article 16 of the ILC Articles.

450. Moreover, pursuant to Articles 41 § 1 and 41 § 2 of the ILC Articles, States were subject to additional obligations to refrain from co-operation in internationally wrongful acts where those acts amounted to “a serious breach”, that is “ a gross or systemic failure” by a State to fulfil “an obligation arising under a peremptory norm of general international law. These obligations arose, in the view of AI and the ICJ, in relation to the HVD Programme since it involved violations of the prohibitions of torture, enforced disappearances and prolonged arbitrary detention, which were violations of jus cogens norms.

C. Applicable general principles deriving from the Court’s case-law

451. The Court notes that the applicant’s complaints relate both to the events that occurred on Poland’s territory and to the consequences of his transfer from Poland to other places of his undisclosed detention (see paragraph 3 above and paragraphs 460, 520, 552 and 570 below).

In that regard, the Court would wish to reiterate the relevant applicable principles.

1. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory

452. The Court reiterates that, in accordance with its settled case-law, the respondent State must be regarded as responsible under the Convention for acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; and El-Masri, cited above, § 206).

2. As regards the State’s responsibility for an applicant’s removal from its territory

453. According to the Court’s settled case-law, removal of an applicant from the territory of a respondent State may engage the responsibility of that State under the Convention if this action has as a direct consequence the exposure of an individual to a foreseeable violation of his Convention rights in the country of his destination (see, among many other examples, Soering v. the United Kingdom, 7 July 1989, §§ 90-91 and 113; Series A no. 161; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 90-91, ECHR 2005-I with further references; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 168, 10 April 2012; Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 233 and 285, ECHR 2012 (extracts) and El-Masri, cited above, §§ 212-214 and 239, with further references).

454. In that context, the Court has repeatedly held that the decision of a Contracting State to remove a person - and, a fortiori, the actual removal itself - may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering, cited above, § 91; and El-Masri, cited above, § 212).

Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was subjected to “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, §§ 218- 221).

455. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, cited above § 233; and El-Masri, cited above § 239).

Again, that risk is inherent where an applicant has been subjected to “extraordinary rendition”, which entails detention ...“outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see El-Masri, ibid.).

456. Similar principles apply to cases where there are substantial grounds for believing that, if removed from a Contracting State, an applicant would be exposed to a real risk of being subjected to a flagrant denial of justice (see Othman (Abu Qatada), cited above, §§ 261 and 285) or sentenced to the death penalty (see Al-Saadoon and Mufdhi, cited above, § 123 and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).

457. While the establishment of the sending State’s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise.

In so far as any liability under the Convention is or may be incurred, it is liability incurred by the sending Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov, cited above, §§ 67 and 90; Othman (Abu Qatada), cited above, § 258; and El-Masri, cited above, §§ 212 and 239).

458. In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances.

The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court’s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi, cited above, § 125 and El-Masri, cited above, §§ 213-214, with further references).

3. Conclusion

459. The Court will accordingly examine the complaints and the extent to which the events complained of are imputable to the Polish State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law.

V. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

460. The applicant’s complaints under Article 3 of the Convention involved both substantive and procedural aspects of this provision.

1) As regards his alleged ill-treatment and detention in Poland, he maintained that Poland had violated Article 3 in enabling his torture and ill-treatment on its territory. Poland knew and should have known about the CIA extraordinary rendition programme, the existence of the “black site” in State Kiejkuty and torture and inhuman and degrading treatment to which the CIA had subjected “High-Value Detainees” as part of this programme. Despite that, Poland had intentionally and knowingly enabled the CIA to detain him at the State Kiejkuty intelligence base customised to the CIA programme purposes for some 6 months.

2) As regards his transfer from Poland, the applicant submitted that Poland had knowingly and intentionally enabled his transfer from its territory despite substantial grounds for believing that there had been a real risk of his being subjected to further treatment contrary to Article 3 in CIA custody.

3) He also complained under Article 3 read alone and in conjunction with Article 13 of the Convention that the Polish authorities had failed to carry out an “effective and thorough investigation” within the meaning of this provision into his allegations of ill-treatment during his detention in a CIA-run detention facility in Stare Kiejkuty.

461. Article 3 of the Convention states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

462. The Court will first examine the applicant’s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough investigation into his allegations of ill-treatment when in CIA custody on Poland’s territory.

A. Procedural aspect of Article 3

1. The parties’ submissions

(a) The Government

463. The Government repeated that the application as a whole was premature. They stressed that Poland was in fact the only country that was conducting a proper criminal investigation into the allegations of rendition and secret detention. In their view, the alleged failure on the part of the Polish Government to cooperate with the international inquiry bodies in 2006-2007 should be seen in the light of the fact that since 2008 the investigation had progressed effectively.

464. As regards the conduct of the proceedings, the Government first of all relied on the exceptional complexity of the case. They submitted that it involved many and various offences, some of them so serious that they were not subject to the statute of limitation. There was a possibility that some individuals at the highest level might be indicted. Also, there was an unprecedented lack of possibility of procedural contact with the alleged victims in order to take evidence from them.

Furthermore, the international aspect of the proceedings constituted a considerable hindrance to their progress. It was clear that the key part of the findings in the investigation concerned the alleged existence of a CIA-run detention facility on Polish territory, which obviously involved intelligence operations of at least two countries - Poland and the USA - operations which were in principle strictly protected on the grounds of national security.

465. Despite that, the Government maintained, as of September 2012 the prosecution had already taken evidence from 62 persons. The case file comprised 43 volumes of documentary evidence. The actions taken during the proceedings included the checking of information of the alleged CIA detention facility contained in the 2006 and 2007 Marty Reports and the Fava Report. The circumstances of the CIA aircraft landings which had not been subject to border and customs controls had been checked and documents from PANSA had been received. Evidence obtained from witnesses included the testimony of the Szymany airport staff, air-traffic controllers and one member of the Fava Inquiry.

In view of the complex legal issues involved in the investigation, a report from experts in international law had been obtained, addressing such issues as international law regulations on the establishment of secret detention centres for suspected terrorists and the status of such detainees.

The need to obtain information from the US authorities had been, and continued to be, of crucial importance but the prosecutor’s requests for legal assistance, including a request for the applicant’s participation in procedural actions, had so far remained unsuccessful. That made the investigative tasks even more difficult.

At the public hearing, the Government added that, in the hope of cooperation on the part of the USA, they were also considering the possibility of taking evidence from injured persons remotely, by means of videoconferencing.

466. Referring to the applicant’s arguments that the investigation was inordinately delayed, politically influenced and ineffective (see paragraphs 463-466 below), the Government said that these assertions had not been supported by any reliable evidence or logical explanation. The fact that at some stage the investigating prosecutor had been disqualified from dealing with the case and replaced by another prosecutor and that the case had been transferred from the Warsaw Prosecutor of Appeal to the Kraków Prosecutor of Appeal could not be regarded as plausible evidence of undue political influence or a factor contributing to the length of the proceedings.

467. In the Government’s submission, the investigation was transparent. The proceedings received constant attention from the public, media and non-governmental organisations. Information about them had been communicated to Amnesty International and the Helsinki Foundation for Human Rights to the fullest extent possible. The proceedings were also monitored by the Ombudsman, who had been provided with classified information.

The investigation was likewise supervised by the Prosecutor General, who had taken personal interest in the case and was fully informed about the current and planned actions.

There was no political pressure on prosecutors conducting the investigation.

The applicant’s Polish lawyer had unrestrained access to unclassified materials in the case file and he had also been able to consult the classified materials on 19 January and 13 June 2012.

468. The Government further maintained that the Court, refusing to admit the document that they had wished to present at the fact-finding hearing, had made it difficult for them to prove that the investigation was thorough, effective and not excessively long.

They emphasised that the actual length of the investigation could not be a decisive criterion. It was true that it was lengthy, but not unduly lengthy, especially considering its exceptional complexity and the factors which had had an impact on its progress and which were beyond the Polish prosecution authority’s control. In that context, they also pointed out that the applicant’s complaint about the allegedly excessive length of the proceedings had been rejected by the Regional Court as ill-founded.

469. To sum up, the investigation, which was still pending, was both effective and thorough, in particular vis-à-vis the standards set for cases concerning the abuse of power by public officials. The investigation was being conducted in an objective, independent and efficient manner. There was no indication of negligence or obstruction to the objective of establishing the truth.

(b) The applicant

470. The applicant submitted that the application was not premature because Poland had failed to carry out an investigation that would satisfy the requirements of Article 3 of the Convention.

More than a decade had elapsed since the applicant had been secretly detained in Poland and the investigation remained pending without any sign of charges being brought or any credible sign of conclusion. It had begun on 11 March 2008, nearly six years after he had been transferred by the CIA from Poland and almost two and a half years after credible reports of a CIA prison in Poland had become publicly available. Indeed, the investigation was so delayed and ineffective that the statute of limitations applicable to the abuse of power - the key offence that the prosecutors had publicly acknowledged they had been investigating - had in the meantime apparently expired.

471. In that regard, the applicant referred to the comments by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism as regards the scope of the States’ obligation to investigate allegations of torture and secret detention (see paragraphs 472-473 below). Fully endorsing those submissions, he stressed that Poland had failed to discharge this obligation.

472. First, the investigation had been neither promptly begun, nor had been promptly carried out. It had started nearly six years after the violations of the applicant’s rights had occurred, even though the State agencies that had cooperated with the CIA had known of these violations while the applicant had been held captive and tortured in Poland. Publicly available sources indicated that the State agencies had known about those violations from the outset in 2002, since they had actively taken part in the preparation of special premises for the purposes of detention and torture. Yet the State had done nothing for five years. Only under strong domestic and international pressure, from such bodies as the Parliamentary Assembly of the Council of Europe, had the Polish prosecution authority finally initiated the proper investigation as late as 2008.

The passage of time had undermined the effectiveness of the investigation. The length of the proceedings had made it more difficult to gather evidence and, in particular, to interview witnesses, who would remember the relevant events less at the present time than they had done several years ago.

If, as the Government asserted, the investigation had progressed, this had not been reflected in the non-classified files to which the applicant’s Polish lawyer had had access. The files did not show any significant actions having been taken since the case had been transferred to the Kraków Prosecutor of Appeal on 26 January 2012. Since September 2012 the total number of witnesses interviewed had remained static at 62. It appeared to be convenient for the Polish State to keep the case in a suspended state but such an indefinite investigation was the worst possible scenario for the victim. The applicant had neither the right to a full access to the case file, nor the possibility of having his rights vindicated in a criminal trial of the perpetrators.

473. Secondly, the investigation was not sufficiently independent, as demonstrated by the repeated and unexplained removal of prosecutors, apparently in response to their attempts to pursue charges against Polish officials. Furthermore, in September 2011 the President of Poland had refused to relieve former President Kwaśniewski of his secrecy obligations for the purposes of providing information to the investigating prosecutors.

The prosecutors had been changed in the investigation three times at junctures that were important for the victim, with no specific explanation from the Prosecutor General or the Government. Each such change required the new prosecutor in charge to become familiar with the files, thereby delaying the investigation further. The first change had actually occurred after prosecutor Mierzewski granted Mr Al Nashiri injured person status in the proceedings. The second prosecutor in charge, Mr Tyl, had been disqualified from dealing with the case immediately after he had granted the Polish lawyers for the applicant and Mr Abu Zubaydah access to the classified materials for a very limited time.

In the applicant’s submission, the fact that the prosecutors had been changed shortly after acts of cooperation with the victims’ representatives suggested an unmeritorious reason behind the changes. As such, the investigation did not seem capable of leading to the identification or punishment of those responsible for the violations of the applicant’s rights.

474. Thirdly, the investigation lacked the required transparency. It had been continually shrouded in secrecy. Since it had begun, no meaningful information as to its terms of reference, precise scope or its progress had been publicly disclosed.

The secrecy of the investigation had severely hampered the vindication of the applicant’s rights. The confidentiality which protected every investigation in Poland, and which was invoked by the Government before the Court, served to ensure the effectiveness of proceedings. It did not prevent the prosecutor from making available to the public important information concerning the investigation. However, almost all the relevant material in the case was classified as secret or top secret. The Government had invoked the secrecy of the investigation but investigative secrecy was not a legal basis under Polish law for classifying documents as secret or top secret. In fact, the classification of documents served to protect illegitimate interests - interests of the State agencies that had played a role in the illegal cooperation with the CIA and in violations of human rights.

In that regard, the applicant again subscribed to the submissions of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism, who had emphasised the importance of public accountability and the requirement that the findings of any investigation into acts of torture be made public (see paragraphs 479-483 below).

475. Lastly, the applicant’s representatives submitted that they were unable to represent his interests properly in the domestic proceedings because they did not have sufficient access to the case file. The Polish lawyer for the applicant had had access to the classified part of the file for some three hours only and had not been allowed to make notes. This had been a wholly insufficient time to inspect, understand and memorise the relevant fragments of the very extensive classified documentation. As a result of the excessive classification, the applicant’s lawyers were also hindered in presenting important information to the Court in the present proceedings.

476. In conclusion, the applicant invited the Court to reject the Government’s preliminary objection on non-exhaustion of domestic remedies and to find a violation of Article 3 of the Convention on account of Poland’s failure to conduct a “thorough” and “effective” investigation for the purposes of that provision.

2. The third-party interveners

(a) Helsinki Foundation for Human Rights

477. The Helsinki Foundation for Human Right (“the Helsinki Foundation”) stated that comments filed in the context of its intervention focused on its experience regarding the Polish involvement in the extraordinary rendition programme. Those comments should not, in its view, be treated as an interpretation of the facts of the case but as an illustration of the problems at issue.

The Helsinki Foundation stressed that, after the first media reports suggesting Poland’s involvement in the CIA rendition programme had emerged, it had been one of a number of Polish organisations demonstrating continued interest in seeking an explanation for the issue.

478. The intervener listed or summarised various letters and requests for information that had been sent by the Helsinki Foundation to the domestic authorities, the responses received and the flight data regarding the CIA programme - the latter had already been included in the statement of facts of the case prepared by the Court on giving notice of the application. It also referred to media reports concerning the conduct of the investigation, emphasising that no meaningful information about the investigation had been disclosed to the public and that the authorities continually invoked secrecy to justify their refusal to respond to request for information.

(b) The UN Special Rapporteur

479. The UN Special Rapporteur stated that there was a growing international consensus as to the nature and scope of the duty to investigate allegations of secret detention, torture and rendition. Such consensus was summarised in the 2010 UN Joint Study recommendations in paragraphs 292(d)-(k) (see paragraphs 283-285 above), which echoed the findings of various governmental and inter-governmental reports in the period since 11 September 2001, including the 2006 and 2007 Marty Reports, the Fava Report and the Flautre Report (see paragraphs 244-275 and 277-279 above).

In the UN Special Rapporteur’s submission, it could now be regarded as established that, where an allegation of torture was raised, States were obliged to carry out an investigation that was independent, promptly begun and promptly executed; was capable of leading to the identification and punishment of those responsible; was prepared to take reasonable steps to obtain evidence, and which would lead to adequate and prompt reparation.

Those requirements also mirrored the obligation to investigate deriving from the Court’s case-law under Article 3 of the Convention.

480. A specific sub-set of international standards had emerged, in the post-2001 era, concerning disclosure of documents and transparency in cases where national security interests were involved.

First, it was essential for parliamentary and judicial inquiries into cases of torture to enjoy unfettered access to confidential information. That principle applied irrespective of any national-security issues that had arisen.

Secondly, independent judicial or quasi-judicial bodies should be established in order to determine any claims by State officials that certain information could not be disclosed to the alleged victim and the public on national security or related grounds. These procedures must provide an independent review of any government assertion of confidentiality and national security. Governments and security agencies must not be permitted to decide for themselves whether material was confidential. The confidentiality, or otherwise, of a particular documents should be established by an adversarial procedure. Irrespective of any finding concerning confidentiality, those documents should be available to the investigating authorities.

Thirdly, those independent bodies should apply a presumption in favour of disclosure. As it had emerged from the Court’s case law, for instance in A. v. the United Kingdom (cited below in paragraph 494), where material was withheld from the alleged victim, his family and lawyers, the essential gist of the material should be disclosed sufficiently for the victim to participate fully in the inquiry.

Fourthly, where information or evidence could not be disclosed, governments should set up, at their own expense, a system in which other material which went beyond the essential gist could be tested by persons appointed to act in the interests of the alleged victim.

Fifthly, publication of as much as possible of the evidence and conclusions of the inquiry was necessary in order to secure adequate redress for the alleged victim and democratic accountability before the public at large. The ultimate decision as to what should and what should not be published must rest with the independent judicial authority. The decision must be taken balancing the interests of national security, as asserted by the Government, against the need to secure proper accountability for practices which constituted grave violations of international law.

481. At the public hearing, the UN Special Rapporteur submitted - also on behalf of the Human Rights Council of the United Nations and the UN High Commissioner for Human Rights - comments on the scope of the right to truth as construed in contemporary human rights law and its relationship with the duty to investigate secret detentions, torture and rendition and secure accountability of public officials for gross and systematic human rights violations committed in the context of State counter-terrorism initiatives.

He stressed that the process of seeking the truth about the Bush-era conspiracy had taken a very considerable time but it had been gathering momentum in the past three years or so. Independent investigations had reliably established the complicity to a greater or a lesser degree of the public officials of a large number of States in the CIA rendition, secret detention and torture programme - and the word “torture” was to be used without hesitation or qualification. A notion of “enhanced interrogation” as practised by the CIA could not be recognised as being anything other than torture. There had emerged credible evidence to show that CIA black sites had been located on the territory of Lithuania, Morocco, Poland, Romania and Thailand and that the officials of at least 49 other States within and outside the Council of Europe had allowed their airspace or airports to be used for rendition flights. Despite the emergence of these facts only one State - Italy - had so far brought any public official to justice.

The experience of the past decade had shown that there were various means by which the right to truth and the principle of accountability could be and had been frustrated, perpetuating effective impunity for the public officials involved in these crimes. They included, in particular, de facto immunities, officially authorised destruction of relevant evidence, objective obstruction of or interference in independent investigations, unjustified assertions of executive secrecy, dilatoriness, interruptions in investigations, and the suppression and delayed publication of reports.

482. Reverting to the meaning of the “right to truth”, the UN Special Rapporteur said that within the United Nations it was seen as a right which had two dimensions - a private dimension and a public dimension. It was the consistent position of the UN mechanisms that where gross or systematic human rights violations were alleged to have occurred, the right to know the truth was not one that belonged solely to the immediate victim but also to society.

In the context of serious human rights violations there was a particular obligation which required States to inform not only the victims and their families but also society as a whole of what had happened. The right to truth implied not only clarification of the immediate circumstances of the particular violations but also the clarification of the general context, the policies and institutional failures and decisions that had enabled their occurrence. Beyond this, the realisation of the right to truth might require the dissemination of information on violations in order to restore confidence in State institutions. For that reason, in El-Masri the collective aspect of the right to truth had been linked with the gravity of the allegations that were at issue in that case.

Once it was recognised that in cases of gross or systemic violations there was a free standing right to truth belonging to society at large, then it would follow that any individual with a legitimate interest in the truth was entitled to invoke that right. If the right to truth were to be confined to the individual who had suffered the violation or his representatives, then the exposure of grave and systematic international crimes would necessarily be dependent on the chance occurrence of there being an individual victim or relative who was able and willing to bring proceedings.

483. The UN Special Rapporteur next pointed to the existing differences of view as to whether the right was to be recognised as part of the adjectival obligation attaching to Article 3, as part of the right to receive information attaching to Article 10, or as the part of the right to reparation under Article 13.

The UN Human Rights mechanisms adopted a holistic approach to this - one which promoted the objective of ending impunity.

Whilst it was correct to locate the right to truth in the adjectival obligation owed under Article 3, the collective dimension of the right could only be fully reflected through the rubric of the right to receive information under Article 10. The right to receive information and the right to truth about gross and systematic human rights violations were inextricably intertwined. To locate the right to truth solely in Article 3 presupposed that at the international level it could be invoked only by the victim of the underlying violation. However, once it was recognised that it was a free standing principle of international law then the category of persons who were entitled to invoke that right would include those who had a legitimate interest and representative interest groups, as well as the media who had a duty to seek the truth and to inform the public.

3. The Court’s assessment

(a) Admissibility

484. The Court considers that the applicant’s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government’s objection on non-exhaustion of domestic remedies should be joined to the merits of this complaint (see paragraph 343 above). Consequently, it cannot be considered that it is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible.

(b) Merits

(i) Applicable general principles deriving from the Court’s case-law

485. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State’s acquiescence or connivance, that provision, read in conjunction with the Contracting States’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; and El-Masri, cited above, § 182).

486. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183-185 and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167).

(ii) Application of the above principles to the present case

487. The Court has already found that, in view of the Government’s unjustified failure to produce the necessary information from the investigation in the present case, it is entitled to draw inferences from their conduct in respect of the well-foundedness of the applicant’s allegations (see paragraph 375 above).

488. Turning to the circumstances of the case as established on the basis of the available material, the Court notes that the Polish authorities opened the investigation into allegations concerning the existence of a CIA secret detention facility in Poland on 11 March 2008. Since then - for some 6 years and 4 months as at the date of the adoption of this judgment - this investigation has been pending seemingly still against persons unknown. In any case, there has been no confirmation from an official source that criminal charges have been brought against any individual (see paragraphs 132-172 and 470 above).

489. The proceedings began as late as some 6 years after the applicant’s detention and ill-treatment, despite the fact that the authorities must necessarily have been involved already at an early, preparatory stage of the implementation of the HVD Programme in Poland and that they knew of the nature and purposes of the CIA’s activities on their territory between December 2002 and September 2003 (see paragraph 442 above). However, at that time they did nothing to prevent those activities, let alone inquire into whether they were compatible with the national law and Poland’s international obligations.

490. In the Court’s view, this failure to inquire on the part of the Polish authorities, notwithstanding the abundance of publicly accessible information of widespread ill-treatment of al’Qaeda detainees in US custody emerging already in 2002-2003 (see also paragraphs 214-239 and 439 above), could be explained in only one conceivable way. As shown by the sequence of the subsequent events, the nature of the CIA activities on Polish territory and Poland’s complicity in those activities were to remain a secret shared exclusively by the intelligence services of the two cooperating countries.

The Court sees no other reason capable of explaining why, when in November 2005 Poland was for the first time publicly named as a country that had possibly hosted a CIA secret prison and received CIA-associated flights at the Szymany airport (see paragraphs 226-228 and 234 above), there was no attempt to initiate any formal, meaningful procedure in order to clarify the circumstances surrounding the aircraft landings and the alleged CIA’s use of, in the words of the 2005 HRW Statement, “a large training facility and grounds near the Szymany airport” maintained by the Polish intelligence service (see paragraph 226 above). Nor did the inquiries instituted by the Council of Europe and the European Parliament prompt the Polish State to probe into those widely disseminated assertions of human rights violations. Indeed, the only response of the Polish authorities to the serious and prima facie credible allegations of their complicity in the CIA rendition and secret detention was to carry out a brief parliamentary inquiry in November-December 2005. The inquiry produced no results and was held behind closed doors. None of its findings have ever been made public and the only information that emerged afterwards was that the exercise did not entail anything “untoward” (see paragraphs 128-130 above).

491. Pursuant to the relevant provisions of the Code of Criminal Procedure, the prosecuting authorities - which, as the Government stressed, are independent of the executive (see paragraph 346 above) - had a duty to open an investigation of their own motion if there was a justified suspicion that an offence had been committed (see paragraphs 184-187 above). In any event - in November-December 2005 at the latest - in the face of allegations of serious criminal activity having been perpetrated in Poland, allegations which on account of the world-wide publicity could not have gone unperceived, the Polish prosecution authority should have promptly initiated an adequate investigation into the matter, notwithstanding the conclusion of the parliamentary inquiry (see also El-Masri, cited above, §§ 186 and 192).

Moreover, in 2006-2007, those allegations were further supported by the findings of the international inquiries (see paragraphs 236-256 above).

492. The Court notes that the Government suggested that their “alleged failure to cooperate in 2006-2007” should not be linked with the assessment of the conduct of the pending criminal investigation (see paragraph 463 above). The Court does not share this point of view.

Poland’s denial of any complicity in the CIA operations and failure to cooperate at international level cannot be seen in isolation from an officially undeclared but, for all practical purposes, perceptible lack of will to investigate at domestic level the allegations that they were denying. The authorities decided not to carry out any further domestic inquiry from November-December 2005 until March 2008. This resulted in the opening of any proper investigation being delayed by nearly two and a half years. Having regard to the exceptional gravity and plausibility of the allegations, encompassing crimes of torture and undisclosed detention, such delay must be considered inordinate. As pointed out by the applicant, it inevitably undermined the Polish prosecution authority’s ability to secure and obtain evidence and, in consequence, to establish the relevant facts (see paragraph 472 above).

493. As regards the procedural activity displayed by the Polish prosecutors, the Government maintained that the investigation had progressed and was still progressing smoothly, account being taken of the exceptional complexity of the case, the attitude of the US authorities to the requests for legal assistance and various other practical impediments to obtaining evidence, including restrictions on access to and contact with the victims (see paragraphs 464-465 above).

The Court does not underestimate the difficulties involved in gathering evidence faced by the authorities. Nevertheless, as noted above, since March 2008 no meaningful progress in the investigation has been achieved and no persons bearing any responsibility have apparently been identified (see paragraphs 132-172 above).

Moreover, at advanced stages of the investigation two successive prosecutors in charge of it were disqualified from dealing with the case and, subsequently, the case was transferred to prosecutors in another region (see paragraphs 133-134, 159 and 473 above). While the Court does not find it necessary to ascertain whether or not these decisions by the Prosecutor General in any way support the applicant’s contention that the investigation has lacked independence and has been politically influenced, they unavoidably contributed to the prolongation of the proceedings.

494. As explained above in relation to Poland’s non-observance of Article 38 of the Convention, the Court has taken note of the fact that the investigation may involve national-security issues (see paragraph 367 above). However, this does not mean that reliance on confidentiality or secrecy gives the investigating authorities complete discretion in refusing disclosure of material to the victim or the public.

It is to be recalled that even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see, mutatis mutandis, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 216-218, ECHR 2009).

495. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened.

An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV; Al-Skeini and Others, cited above, § 167 and El-Masri, cited above, §§191-192).

496. In the present case only sparse and vague information as to the terms of reference or scope of the proceedings, including the offences suspected or possibly involved, has so far been disclosed to the victims’ representatives and the general public (see paragraphs 132-172 and 474-475 above). Even at the hearing before this Court the Government preferred to give an ambiguous description of the nature of the offences that have been the object of the investigation (see paragraph 464 above).

By contrast, as demonstrated by excerpts from the Polish media’s publications produced by the applicant, certain important procedural actions taken by the prosecution have, notwithstanding the official secrecy pleaded by the Government, been described in a more or less detailed manner in the national press. Thus, a full list of questions put by the prosecution to experts obtained from unofficial sources was disclosed by the Polish press to the public. It has never been presented fully either to the Court in these proceedings or, as it would appear from the available material, even to the counsel for the victim (see paragraphs 137, 151 and 475 above).

The Polish counsel for the applicant submitted that his access to the case file was insufficient and that this hindered him seriously in representing the applicant properly in domestic proceedings and before the Court (see paragraph 475 above). The Court accepts that it has been so. In this regard it would recall that in cases where full disclosure is not possible, notably on account of national-security concerns, the difficulties that this causes should be counterbalanced in such a way that the party concerned can effectively defend its interests in the proceedings (see paragraph 494 above).

497. Moreover, the Court considers that the importance and the gravity of the issues involved require particularly intense public scrutiny of the investigation in the present case. First, those issues include the allegations of serious human rights violations, encompassing torture and occurring in the framework of a secret large-scale programme of capture, rendition, secret detention and interrogation of terrorist suspects operated by the CIA owing to cooperation with the intelligence services of Poland and many other countries. No less importantly, it involves the questions of the legality and the legitimacy of both of decisions taken by Polish State officials and of activities in which the national security and intelligence services were engaged in the implementation of the CIA HVD Programme on Poland’s territory.

Securing proper accountability of those responsible for the alleged, unlawful action is instrumental in maintaining confidence in the Polish State institutions’ adherence to the rule of law and the Polish public has a legitimate interest in being informed of the investigation and its results. It therefore falls to the national authorities to ensure that, without unacceptably compromising national security, a sufficient degree of public scrutiny is maintained in the present case (see also paragraph 494 above).

498. The instant case, apart from raising an issue as to an effective investigation of alleged ill-treatment contrary to Article 3 of the Convention, also points out in this context to a more general problem of democratic oversight of intelligence services (see also paragraphs 262-265 above). The protection of human rights guaranteed by the Convention, especially in Articles 2 and 3, requires not only an effective investigation of alleged human rights abuses but also appropriate safeguards - both in law and in practice - against intelligence services violating Convention rights, notably in the pursuit of their covert operations. The circumstances of the instant case may raise concerns as to whether the Polish legal order fulfils this requirement.

499. Considering all the above elements, the Court finds that the proceedings complained of have failed to meet the requirements of a “prompt”, “thorough” and “effective” investigation for the purposes of Article 3 of the Convention.

Consequently, the Court rejects the Government’s preliminary objection on non-exhaustion of domestic remedies on the ground that the application was premature and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect.

B. Substantive aspect of Article 3

1. The parties’ submissions

(a) The Government

500. The Government submitted that, since the investigation into the applicant’s allegations was still pending, they were not in a in a position to address in detail the questions concerning the merits of his complaint.

(b) The applicant

501. The applicant submitted that in the light of the Court’s case-law Poland had been under a positive obligation under Article 3 to protect him from torture and other forms of ill treatment by the CIA on its territory and to prevent his transfer from Poland to other CIA secret detention facilities, which had exposed to him to further violations of that Article. However, the authorities, despite the fact that at the relevant time they knew, or should have known, that under the HVD Programme CIA prisoners were being subjected to interrogation methods and other practices manifestly incompatible with the Convention, had done nothing to stop or prevent the violations of his fundamental rights.

502. The treatment to which the applicant was subjected in CIA custody in Poland clearly passed the threshold set in the Court’s case-law for “torture” within the meaning of Article 3.

As clearly demonstrated by the disclosed CIA material, he was deliberately subjected for a prolonged period of time to a wide range of abusive interrogation methods known as “enhanced interrogation techniques”. Those methods, often used in combination, were specifically designed to elicit information by inflicting psychological and physical suffering on an interrogated person. Indeed, official U.S. government documents stated that the “goal of interrogation [was] to create a state of learned helplessness and dependence conducive to the collection of intelligence in a predictable, reliable, and sustainable manner”, and that interrogation procedures were used “to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner”.

503. In the light of expert evidence and voluminous documentary, evidence, including most notably the CIA declassified documents, it was confirmed beyond reasonable doubt that in Poland the applicant had been subjected not only to “enhanced interrogation techniques” but also to “unauthorised techniques” - including mock executions and stress positions, the most significant form of abuse in the CIA programme.

In addition, the applicant’s six-month solitary confinement and incommunicado detention in Poland also amounted to treatment in violation of Article 3.

504. The 2004 CIA Report admitted that the applicant had been subjected to “enhanced interrogation techniques” in the first two weeks of December 2002. The ICRC reported that Mr Al Nashiri had confirmed that in his third place of detention - in Poland - he had been held naked and subjected to mock executions, prolonged standing stress positions with his wrists shackled above his head to the ceiling for days at a time, almost dislocating his arms from his shoulders and to the direct physical pain through the use of a stiff brush and the interrogator’s standing on his shackles. He had also been threatened with sodomy and with the arrest and rape of his family.

As such, the interrogation methods inflicted on the applicant in Poland had constituted torture, as defined by the Court, that is, “deliberate inhuman treatment causing very serious and cruel suffering”.

505. Moreover, these methods had had devastating and lasting effects on the applicant, as demonstrated by his statements before the Combatant Status Review and by the fact that, as a result of torture, he was suffering from Post-Traumatic Stress Syndrome (see paragraphs 113 and 126 above).

2. The Court’s assessment

(a) Admissibility

506. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

(i) Applicable general principles deriving from the Court’s case-law

507. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni v. France, cited above, § 95; Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV); Ilaşcu and Others cited above, § 424; Shamayev and Others, cited above, § 375 and El-Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 26-31, ECHR 2001-XI).

Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; Labita, cited above, § 119; Öcalan v. Turkey [GC], no. 46221/99, § 179 ECHR 2005-IV and El-Masri, cited above, § 195

508. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI Jalloh v. Germany cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El-Masri, cited above, § 196).

In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000-VII; and El-Masri, cited above, § 197).

509. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998-VI and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). The State’s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III and El-Masri, cited above, § 198).

(ii) Application of the above principles to the present case

510. The Court has already found that the applicant’s allegations concerning his ill-treatment and secret detention in Poland from 5 December 2002 to 6 June 2003 and his transfer from Poland to other CIA black sites on the latter date have been proved before the Court and that those facts are established beyond reasonable doubt (see paragraphs 405-417 above).

It remains to be determined whether the treatment to which he was subjected falls within the ambit of this provision and, if so, to what extent it can be imputed to the respondent State (see paragraphs 451-458 above)

(a) Treatment to which the applicant was subjected at the relevant time

511. In the light of the CIA declassified documents and the applicant’s own account of events given to the ICRC, the Court has already found that in December 2002 and January 2003, during his secret detention in Poland, the applicant was interrogated by the CIA and subjected to EITs and a series of so-called “unauthorised” interrogation techniques (see paragraphs 99-101 and 416-417 above). The expression “unauthorised” meant that they were not included in the list of 10 permitted interrogation measures applied as a matter of standard procedure to High-Value Detainees - which are graphically described in the 2004 CIA Report, the 2004 CIA Background Paper and, additionally, in the 2009 DOJ Report (see paragraphs 54-68 above).

As can be seen from the CIA documents, those unauthorised measures included two mock executions, which apparently took place on the same day. The first one was with the use of an unloaded pistol being “cocked” to his head while he was shackled in a sitting position, the second with a power drill while he was forced to stand naked and hooded in his cell. The applicant was also subjected to what was described in the 2004 CIA Report as “potentially injurious stress positions”. That meant, as stated in that report, that he was required to kneel on the floor and lean back, that he was subjected to standing stress positions and pushed when in those positions and that he was lifted off the floor by his arms while his arms were bound behind his back with a belt. This apparently resulted in his arms nearly being dislocated from his shoulders. He was told that, if he did not “talk”, his mother and family members would be brought to the black site - leaving him to infer from this that his female relatives might be abused in front of him. His “debriefer” stood on his shackles to induce pain, which caused further bodily injuries - cuts and bruises. The same “debriefer” blew smoke into his face during the interrogation sessions. Also, in order to induce pain on him, he was washed with the kind of stiff brush that “one uses ... to remove stubborn dirt” (see paragraphs 99-100 above).

512. The 2004 CIA Report further states that, in addition to those unauthorised measures, “the interrogation team continued EITs on Al Nashiri for two weeks in December 2002” and that, as he was perceived as “withholding information”, hooding and handcuffing were “reinstated”. Since the remaining parts of the relevant section, covering the period from December 2002 to September 2003, have been redacted, there is no indication as to which other specific techniques could have been inflicted on the applicant and no description of other aspects of the treatment to which he could have been subjected in Poland (see paragraph 99 above). However, it is to be noted that the CIA documents give a precise description of the treatment to which High Value Detainees were being subjected in custody as a matter of precisely applied and predictable routine, starting from their capture through rendition and reception at the black site, to their interrogations. As stated in the 2004 CIA Background Paper, “regardless of their previous environment and experiences, once a [High-Value Detainee] is turned over to CIA a predictable set of events occur” (see paragraphs 63-68 above). Even though the section devoted in that paper to interrogations is largely redacted, it gives a complete list of the stages of a CIA interrogation and the measures used. This specific part of the 2004 CIA Background Paper, although considerably redacted, gives a clear picture of a “prototypical interrogation” to be practised routinely at each and every CIA black site, together with the suggested time-frame and refers to effective combinations of various “techniques” described above (see paragraph 68 above).

513. A complementary account of the applicant’s treatment and detention under the HVD Programme at the relevant time is given in the 2007 ICRC Report. It states that at the early stages of his detention - that is to say, over and up to several months following his capture in October 2002 - the applicant was subjected to “a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and information”. It further states that throughout his entire period of his undisclosed detention he was kept in continuous solitary confinement, deprived of access to the open air, exercise, appropriate hygienic facilities and basic items in pursuance of interrogation (see paragraphs 69-70, 102 and 281-282 above).

514. The Court cannot speculate as to when, how and in what combination the specific “authorised” or “permitted” interrogation techniques were used on the applicant between 5 December 2002 and 6 June 2003. However, the predictability of the CIA standard procedures and treatment applied to its detainees gives sufficient grounds to believe that these measures could have been used in respect of the applicant during his detention in Poland and likewise elsewhere, following his transfer from Poland, as an integral part of the HVD Programme.

515. Nor does the Court find it necessary to analyse each and every aspect of the applicant’s treatment in detention or the physical conditions in which he was detained. This treatment is to be characterised as “deliberate inhuman treatment causing very serious and cruel suffering” for the purposes of Article 3 (see paragraph 508 above).

All the measures were applied in a premeditated and organised manner, on the basis of a formalised, clinical procedure, setting out a “wide range of legally sanctioned techniques” and specifically designed to elicit information or confessions or to obtain intelligence from captured terrorist suspects. Those - explicitly declared - aims were, most notably, “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”; “to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner”; “to create a state of learned helplessness and dependence”; and their underlying concept was “using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence [a High-Value Detainee’s] behaviour, to overcome a detainee’s resistance posture” (see paragraphs 55 and 62-68 above).

516. In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (see paragraph 508 above and El-Masri, cited above, § 211).

(β) Court’s conclusion as to Poland’s responsibility

517. The Court has already found that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory. It has also found that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, it ought to have known that, by enabling the CIA to detain such persons on its territory, it exposed them to a serious risk of treatment contrary to the Convention (see paragraph 442 above).

It is true that, in the assessment of the experts - which the Court has accepted - the interrogations and, therefore, the torture inflicted on the applicant at the Stare Kiejkuty black site were the exclusive responsibility of the CIA and that it is unlikely that the Polish officials witnessed or knew exactly what happened inside the facility (see paragraphs 441-442 above).

However, under Article 1 of the Convention, taken together with Article 3, Poland was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraphs 443 and 509 above).

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held above, on the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities - even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant - must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

518. Furthermore, Poland was aware that the transfer of the applicant to and from its territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see El-Masri, cited above, § 221).

In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraph 454 above). Consequently, by enabling the CIA to transfer the applicant to its other secret detention facilities, the Polish authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraphs 103, 442 and 453-454 above).

519. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect.

VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

520. The applicant complained that from 5 December 2002 to 6 June 2003 Poland had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures. In addition, by enabling the CIA to transfer him to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk further undisclosed detention.

He alleged a breach of Article 5 of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

1 The Government

521. The Government refrained from any comments on the admissibility and merits of this complaint.

522. The applicant submitted that, despite the fact that the Polish authorities had known that terrorist suspects had been held by the US authorities in secret, incommunicado CIA detention they had done nothing to prevent or stop his detention and transfer. The authorities had known or should have known of the purposes for which the CIA had used the Stare Kiejkuty training base because they had signed a secret agreement and had customised the premises for the CIA’s specific needs to detain and interrogate persons under the HVD Programme.

Accordingly, Poland had not only actively facilitated the CIA tasks but had also failed to fulfil its positive obligations under Article 3 to prevent his unlawful detention on its territory by CIA officials.

523. The fact that the CIA rendition and detention programme had operated in the context of an anti-terrorist initiative did not absolve the Polish authorities from their responsibility. Under the Court’s case-law, the fight against terrorism did not mean that the Polish authorities could have assumed that the CIA had had a carte blanche under Article 5 to keep terrorist suspects in its custody outside any judicial scrutiny. Unacknowledged detention was a most grave violation of Article 5 and a complete negation of the additional Convention safeguards for the preservation of the right to life and freedom from torture of detained persons. A forced disappearance conflicted with some of the most basic protections against abuse of State power. The initial failure to record the fact and details of the detention (date, time and location), and the ongoing failure to account for the detainee’s further whereabouts - as it could be found in the present case - constituted a most serious failing since this facilitated the official cover-up of future violations. Indeed, the CIA rendition scheme had not even contemplated the legal safeguards of Article 5.

524. As regards the applicant’s transfer, the authorities should have -but had not - taken into account the fact that there had been sufficiently flagrant prospects of his continued arbitrary and secret detention in the CIA hands. As had emerged from the Court’s case-law, for instance Othman (Abu Qatada) (cited in paragraph 455 above), a flagrant breach of Article 5 would occur if, as was the situation in the present case, the receiving State arbitrarily detained an applicant for many years without any intention of bringing him to trial. By June 2003 it had been widely known that the US rendition programme had involved secret detention in overseas locations. Accordingly, Poland had known that there had been substantial grounds for believing that the applicant had faced a real risk of being subjected to further incommunicado detention.

525. Lastly, the applicant referred to El-Masri, stating that in the light of that judgment, likewise concerning secret detention under the HVD Programme, his unacknowledged detention had amounted to disappearance and the Polish authorities had been responsible for the entirety of his detention in Poland and elsewhere, following his transfer.

526. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(a) Applicable general principles deriving from the Court’s case-law

527. The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118 and El-Masri, cited above, § 230). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311 and El-Masri, ibid.).

528. It must also be stressed that the authors of the Convention reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial supervision assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231).

529. Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention’s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78 and El-Masri, cited above, § 232).

The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v Turkey, 25 May 1998, §§ 123-124, Reports of Judgments and Decisions 1998-III and El-Masri, cited above, § 233).

(b) Application of the above principles to the present case

530. The Court observes that secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. As can be seen from the CIA declassified documents, the rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees. To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see paragraphs 50-51, 59 and 62-71 above).

The rendition operations had therefore largely depended on cooperation, assistance an active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated. While, as noted above, the interrogations of captured terrorist suspects was the CIA’s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance of those authorities, such as for instance customising the premises for the CIA’s needs, ensuring security and providing the logistics were the necessary condition for the effective operation of the CIA secret detention facilities (see paragraphs 325-326, 423, 435-436 above).

531. In relation to the applicant’s complaint under the substantive aspect of Article 3, the Court has already found that Poland was aware that the applicant had been transferred from its territory by means of “extraordinary rendition” and that the Polish authorities, by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 518 above). It finds that these conclusions are likewise valid in the context of the applicant’s complaint under Article 5 and that Poland’s responsibility is engaged in respect of both his detention on its territory and his transfer from Poland (see El-Masri, cited above, § 239).

532. Accordingly, there has been a violation of Article 5 of the Convention.

VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

533. The applicant further complained that Poland had violated his rights under Article 8 by enabling the CIA to ill-treat and detain him incommunicado on its territory and to deprive him of any contact with his family.

Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

534. The Government refrained from making any comments on the admissibility and merits of this complaint.

535. Referring to his submissions concerning a breach of Articles 3 and 5, the applicant reiterated that in Poland he had been held in incommunicado detention and subjected to a range of abusive interrogation methods, including forced nudity, mock executions, hooding, handcuffing, shackling, stress positions, threats of injury (including of a sexual nature) to his mother and family, and pain induced through the use of a stiff brush on his body as well as by standing on his shackles. Such physical mistreatment had interfered with his physical and moral integrity and had resulted in a severe deterioration of his physical well-being and mental health, in violation of Article 8.

Moreover, as stated in the CIA official documents, the entire purpose of the rendition programme to which he was subjected, had been to disorient him and interfere with his psychological and physical integrity in order to extract information from him.

536. In the applicant’s view, Poland had failed to fulfil its positive obligations to adopt measures in order to protect him against physical and psychological abuse and to ensure respect for his family rights. It had also failed adequately to prosecute and punish infringements of his physical and mental integrity committed on its territory. In so doing, the Polish authorities had been in breach of their obligation to respect and protect his physical and psychological integrity, including his dignity and personal autonomy, and had violated his right to respect for his family life.

537. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

VIII. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

538. The notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court’s case-law).

Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002 III). Furthermore, the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, ibid.)

539. Having regard to its conclusions concerning the respondent State’s responsibility under Articles 3 and 5 of the Convention (see paragraphs 517-519 and 531-532 above), the Court considers that the actions and omissions of Poland in respect of the applicant’s detention and transfer also amounted to an interference with his rights protected by Article 8 of the Convention and engaged Poland’s responsibility under that provision. In view of the circumstances in which it occurred, the interference with the applicant’s right to respect for his private and family life must be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of that Article.

540. Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.

541. The applicant complained that Poland had been in breach of Article 13 of the Convention, taken separately and in conjunction with Article 3, on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of the Convention.

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

542. The parties essentially reiterated their submissions concerning the procedural limb of Article 3.

543. The Government maintained that the criminal investigation in Poland had been thorough and effective and had, therefore, met the requirements of an “effective remedy” for the purposes of Article 13 of the Convention.

544. The applicant disagreed and said that the investigation had been initiated after a considerable delay and with marked reluctance on the part of the Polish authorities, mostly owing to the international pressure following the findings of the inquiries conducted by the Council of Europe and the European Parliament. Despite the fact that the investigation had been pending for nearly six years, no meaningful progress had been achieved.

545. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 477 above). It must likewise be declared admissible.

(a) Applicable general principles deriving from the Court’s case-law

546. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports of Judgments and Decisions 1998-I and Mahmut Kay, cited above, § 124).

547. Where an individual has an arguable claim that he has been ill-treated by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova, cited above, §§ 161-162; Assenov and Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98 and El-Masri, cited above, § 255).

548. The requirements of Article 13 are broader than a Contracting State’s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see, El-Masri, cited above, § 255, with further references to the Court’s case-law).

549. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151 and El-Masri, cited above, § 257).

(b) Application of the above principles to the present case

550. The Court has already found the respondent State responsible for violations of the applicant’s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 510-540 above). There is, therefore, no doubt that his complaints are “arguable” for the purposes of Article 13 and that he should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 537 above and El-Masri, cited above, § 259).

For the reasons set out in detail above, the Court has found that the criminal investigation in Poland fell short of the standards of the “effective investigation” that should have been carried out in accordance with Article 13 (see paragraphs 487-499 above).

551. Consequently, there has been a violation of Article 13, taken in conjunction with Article 3 of the Convention.

IX. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

552. The applicant complained that Poland, by enabling the CIA to transfer him from its territory, had exposed to him to a real and serious risk of being transferred to a jurisdiction where he would be subjected to a flagrantly unfair trial, in breach of Article 6 § 1 of the Convention. That provision, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial by an independent and impartial tribunal established by law.”

553. The Government submitted no comments on the admissibility and merits of this complaint.

554. The applicant maintained that, having regard to the widespread public criticism of the military commission procedure at the time of his transfer from Poland, as well as the numerous deficiencies that were apparent from the published texts of the military orders governing that procedure, Poland had known, or should have known that he would face a flagrant denial of his right to a fair trial after his transfer from Poland. Those deficiencies had also been criticised in Resolution no. 1340 of the Parliamentary Assembly of the Council of Europe, by the Human Rights Chamber for Bosnia and Herzegovina, by non-governmental organisations including Human Rights Watch and Amnesty International, as well as in news reports.

555. At the relevant time - that is, in June 2003 - it had been evident that the military commissions had been neither independent nor objectively impartial. Military commission members had been appointed by the US Secretary of Defense (the “Appointing Authority”) or his designee and could be removed by the same authority for good cause. Those members had been further subordinate to the Secretary of Defense or his designee because they all had been required to be commissioned officers of the United States armed forces. Moreover, post-trial review had been conducted by a review panel consisting of three military officers also designated by the Secretary of Defense. A Military Commission finding as to a charge and sentence had become final when the President, or if designated by the President, the Secretary of Defense had made a final decision thereon.

556. Military commissions could not be considered to constitute a tribunal “established by law” since, as held by the US Supreme Court in Hamden v. Rumsfeld, they had violated the law of the United States and the Geneva Conventions (see also paragraph 75 above).

557. At the material time it had been known that the military commissions had allowed for indefinite detention without trial since there had been no time-limits on bringing the accused to trial. There had been no bar on admission of evidence obtained by torture; evidence had been deemed admissible merely if the Presiding Officer or a majority of the Commission had been of the opinion that it “would have probative value to a reasonable person”.

It had also been known that any trial would be held on the US military base at Guantánamo Bay, with no effective public access for observers.

558. Although military commission rules applicable to the applicant had changed since the time he had been transferred from Poland and were at present governed by the Military Commission Act of 2009, they still provided for the death penalty and retained many deficiencies associated with the previous scheme.

The US Secretary of Defense or his designee acted as the convening authority for a given commission, approved charges for trial by a military commission and selected the commission members who were required to be members of the armed forces on (or recalled to active duty) and as such were subordinate to the Secretary of Defense.

The current rules placed no limits on the length of time within which a suspect had to be charged or tried. Furthermore, they allowed for the accused to be denied access to classified information or evidence and, unlike US federal court procedures which barred the admission of hearsay, they expressly permitted hearsay evidence and did not bar convictions based mainly on such evidence.

559. Given the widespread torture and abuse in US custody of terrorist suspects whose statements could be introduced as hearsay evidence against the applicant, he was in consequence unable to confront witnesses against him. Unlike US federal court procedures, which barred the admission of evidence derived from coerced statements, the current military commission rules admitted 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.

The military commissions would still be held in the remote location of Guantánamo Bay, thereby significantly hindering public access to the proceedings against the applicant. Finally, there was considerable uncertainty associated with the current military commission rules, which had been applied so far in only three cases, none of which - in contrast to the applicant’s case - involved the death penalty.

560. In sum, the applicant invited the Court to hold that Poland, by permitting his transfer from its territory despite the risk that he would be subjected to a flagrantly unfair trial, had been in breach of Article 6 § 1 of the Convention.

561. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(a) Applicable principles deriving from the Court’s case-law

562. In the Court’s case-law, the term “flagrant denial of justice” is synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see, among other examples, Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II and Othman (Abu Qatada), cited above § 258).

In Othman (Abu Qatada), citing many examples from its case-law, the Court has referred to certain forms of unfairness that could amount to a flagrant denial of justice. These include conviction in absentia with no subsequent possibility to obtain a fresh determination of the merits of the charge; a trial which is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed and deliberate and systematic denial of access to a lawyer, especially for an individual detained in a foreign country (ibid. § 259).

In other cases, the Court has also attached importance to the fact that if a civilian has to appear before a court composed, even only in part, of members of the armed forces taking orders from the executive, the guarantees of impartiality and independence are open to a serious doubt (see Incal v. Turkey, 9 June 1998, § 68 et seq. Reports of Judgments and Decisions 1998-IV and Öcalan, cited above, § 112).

563. However, “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see Othman (Abu Qatada), cited above, § 260)

564. The Court has taken a clear, constant and unequivocal position of in respect of the admission torture evidence. No legal system based upon the rule of law can countenance the admission of evidence - however reliable - which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence irreparably damages that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded in order to protect the integrity of the trial process and, ultimately, the rule of law itself. The prohibition of the use of torture is fundamental (see Othman (Abu Qatada, cited above, §§ 264-265).

Statements obtained in violation of Article 3 are intrinsically unreliable. Indeed, experience has all too often shown that the victim of torture will say anything - true or not - as the shortest method of freeing himself from the torment of torture (see Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006) and Othman (Abu Qatada), cited above, § 264).

The admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome.

It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial (ibid. § 267).

(b) Application of the above principles to the present case

565. The Court has already found that during his detention in Poland the applicant was subjected by the CIA to treatment which amounted to torture within the meaning of Article 3 and that this occurred in the course of interrogations with the use of techniques specifically designed to elicit information or confessions or to obtain intelligence from captured terrorist suspects (see paragraphs 511-516 above).

Furthermore, as can be seen from the transcript of the applicant’s recollection of what he had endured in CIA custody, as recounted at a hearing before the Combatant Status Review Tribunal, which took place in Guantánamo Bay on 14 March 2007, he confirmed before the US authorities that he had been tortured into confessing. He also stated that he had made up stories during the torture in order to stop it and that he had been tortured for “the last five years” (see paragraphs 112-113 above).

Accordingly, there can be little doubt as to the fact that a large part of the important or even decisive evidence against him is necessarily based on his self-incriminating statements obtained under torture or, as he pointed out, on other witnesses testimony by terrorist suspects likewise obtained by the use of torture or ill-treatment.

566. The Court notes that at the time of the applicant’s transfer from Poland, the procedure before military commissions was governed by the Military Order of 13 November 2001 and the Military Commission Order no. 1 of 21 March 2002 (see paragraphs 75-76 above).

The commissions were set up specifically to try “certain non-citizens in the war against terrorism”, outside the US federal judicial system. They were composed exclusively of commissioned officers of the United States armed forces. The appeal procedure was conducted by a review panel likewise composed of military officers.

The commission rules did not exclude any evidence, including that obtained under torture, if it “would have probative value to a reasonable person”. On 29 June 2006 the US Supreme Court ruled in Hamdan v. Rumsfeld that the military commission “lacked power to proceed” and that the scheme had violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions (see paragraphs 75-77 above).

567. Having regard to the fact:

(i) that the military commission did not offer guarantees of impartiality of independence of the executive as required of a “tribunal” under the Court’s case-law (see paragraph 562 above);

(ii) that it did not have legitimacy under US and international law resulting in, as the Supreme Court found, its lacking the “power to proceed” and that , consequently, it was not “established by law” for the purposes of Article 6 § 1;

(iii) and that there was a sufficiently high probability of admission of evidence obtained under torture in trials against terrorist suspects,

the Court concludes that at the time of the applicant’s transfer from Poland there was a real risk that his trial before the military commission would amount to a flagrant denial of justice.

568. At that time, in the light of publicly available information, it was evident that any terrorist suspect would be tried before a military commission. Also, as the applicant pointed out, the procedure before the commission raised serious worldwide concerns among human rights organisations and the media. The 2003 PACE Resolution, adopted on 26 June 2003, expressed its “disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amount[ed] to a serious violation of the right to receive a fair trial” (see paragraph 229 above). The authorities of Poland, as those of any other member State of the Council of Europe, must necessarily have known of the circumstances that gave rise to the grave concerns stated in the resolution.

Consequently, Poland’s cooperation and assistance in the applicant’s transfer from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice engaged the Polish State’s responsibility under Article 6 § 1 of the Convention (see paragraphs 456 and 562-564 above with references to the Court’s case-law).

569. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

X. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 6 TO THE CONVENTION

570. The applicant complained that Poland, by knowingly and intentionally enabling the CIA to transfer him from its territory, despite substantial grounds for believing that there had been a real and serious risk that he would be subjected to the death penalty, had violated Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention.

Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

Article 1 of Protocol No. 6 to the Convention reads as follows:

“The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.”

571. The Government submitted no comments on the admissibility and merits of the complaint.

572. The applicant submitted that at the time of his transfer it had been a matter of public knowledge that terrorist suspects held in US custody had been likely to be subjected to the death penalty following an inherently unfair trial before a military commission.

He had been at that time, and he currently remained, at a real risk of being subjected to capital punishment.

The capital charges against him had been approved on 28 September 2011 but the trial would not begin before 2 September 2014. The approval of the capital charges had already begun to expose him to serious ongoing harm and anguish associated with the prospects of the death penalty. That anguish and fear he would have to endure for many years to come before the trial came to an end.

573. The applicant further referred to the Court’s case-law, in particular Al Saadoon and Mufdhi (cited in paragraph 456 above). Moreover, he stressed that in Öcalan (cited in paragraph 562 above) the Court had held that the imposition of the death penalty following an unfair trial would amount to an arbitrary deprivation of life in violation of Article 2 and also of Article 3, as it would subject a person wrongfully to the fear that he was going to be executed.

574. In view of the foregoing, the applicant invited the Court to find violations of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention.

575. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.