Lithuania’s involvement in CIA secret detainee programme led it to commit multiple rights violations

JUDGMENT 

Abu Zubaydah v. Lithuania 31.05.2018 (no. 46454/11)

see here  

SUMMARY

The case Abu Zubaydah v. Lithuania (application no. 46454/11) concerned the applicant’s allegations that Lithuania had let the United States Central Intelligence Agency (CIA) transport him onto its territory under the secret extraordinary rendition programme and had allowed him to be subjected to ill-treatment and arbitrary detention in a CIA detention “black site”. He also complained that Lithuania had failed to carry out an effective investigation into his allegations. The applicant was Zayn Al-Abidin Muhammad Husayn, who is also known as Abu Zubaydah.

In today’s Chamber judgment1 in the case the European Court of Human Rights held, unanimously, that there had been: violations of Article 3 (prohibition of torture) of the European Convention on Human Rights, because of the Government’s failure to effectively investigate Mr Husayn’s allegations and because of its complicity in the CIA’s actions that had led to ill-treatment; and violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy), in conjunction with Article 3.

The Court had no access to Mr Husayn as he is still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate Committee report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court concluded that Lithuania had hosted a secret CIA prison between February 2005 and March 2006, that Mr Husayn had been detained there, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Lithuania had also permitted him to be moved to another CIA detention site in Afghanistan, exposing him to further ill-treatment.

The Court found that Mr Husayn had been within Lithuania’s jurisdiction and that the country had been responsible for the violations of his rights under the Convention. It recommended that Lithuania conclude a full investigation of Mr Husayn’s case as quickly as possible and, if necessary, punish any officials responsible. The country also had to make further representations to the United States to remove or limit the effects of the violations of his rights. The Court has today also found in the case Al Nashiri v. Romania that Romania violated the rights of another CIA prisoner, Abd Al Rahim Husseyn Muhammad Al Nashiri, in similar circumstances.

PROVISIONS 

Article 3

Article 5

Article 8

Article 13

PRINCIPAL FACTS 

Mr Husayn is a stateless Palestinian who was born in 1971 and is being held in the Internment Facility at the United States (US) Guantánamo Bay Naval Base.

He was initially considered by the US authorities as the “third or fourth man” in al-Qaeda and was
seized in Faisalabad, Pakistan, in March 2002. He was suspected of being a planner of the 11
September 2001 attacks and a senior lieutenant to Osama bin Laden. He was the first so-called
“high-value detainee” (“HVD”) detained by the CIA at the start of the “war on terror” launched by
President Bush. He has never been charged with any offence.

The European Court established in Mr Husayn’s first case (Husayn (Abu Zubaydah) v. Poland) that
after his capture he had been held in a CIA detention facility in Thailand before being moved to
another “black site” in Poland in December 2002. He was detained there until September 2003.
The applicant submitted in this case that he had been secretly transferred from Poland to the prison
at Guantánamo and then to Morocco in 2004. He had later been moved to Lithuania on 17 or 18
February 2005 and transferred out of that country to Afghanistan on 25 March 2006.
According to the applicant, he was subjected to torture and other forms of ill-treatment prohibited
by Article 3 of the Convention throughout his detention by the CIA.

Mr Husayn described his treatment in testimony in 2006 to the International Committee of the Red
Cross (ICRC) and in partly declassified transcripts of evidence to the US military Combatant Status
Review Tribunal in 2007.

It included interrogators putting a black cloth over his face and pouring water over it so he could not
breathe; slamming him into a wall and slapping his face; playing loud music while he was kept in a
tall box; depriving him of food; and keeping him naked in cold conditions. He told the Tribunal that
doctors had told him that he had nearly died four times during months of interrogation.

He also alleged that he had been kept in continuous solitary confinement and incommunicado
detention throughout his undisclosed detention. He had no knowledge of where he was being held
and no contact with persons other than his interrogators or guards.

He stated that he suffers from blinding headaches and an acute sensitivity to sound. He had more
than 300 seizures between 2008 and 2011 and at some point during his captivity he lost an eye
International media reported in 2009 that Lithuania was among the eastern European countries
which had hosted a secret CIA prison, at a former riding school near capital city Vilnius.

A subsequent Lithuanian Parliament committee inquiry found that CIA planes had landed in
Lithuania in 2004, 2005 and 2006 and that the CIA and the domestic intelligence services had
reconstructed two facilities together. However, Parliament could not determine whether any
detainees had been flown in on the CIA planes or held at the bigger of the two facilities.

Finally, the inquiry found that senior Lithuanian officials had only known in general terms of
cooperation with the CIA. A 2010 investigation by the Prosecutor General’s Office into abuse of
office by officials in connection with the alleged CIA operations ended in 2011 without any
prosecutions. The investigation was reopened in 2015 and is still ongoing.

THE DECISION OF THE COURT

The Court first dealt with objections by the Government’s that Mr Husayn’s allegations were a restatement of inquiry reports and media articles. There was no proof the CIA had taken him to
Lithuania and detained and ill-treated him there with the knowledge of the domestic authorities.
The Court observed that the case was largely based on circumstantial evidence, noting that only Mr
Husayn’s US legal representative, with top-secret security clearance, was allowed to see him.

The evidence included, in particular, the 2014 declassified executive summary of the US Senate
report on CIA torture, which detailed the activities of the CIA in the HVD programme in the years
2001-2009. The Court also reviewed Mr Husayn’s testimony in the ICRC report and his statements to
the Combatant Status Review Tribunal.

In addition, it took account of international inquiries, such as the three reports by Council of Europe
Parliamentary Assembly rapporteur Dick Marty from Switzerland and redacted documents released
by the CIA. It heard the testimony of Senator Marty and two experts on the CIA rendition
programme, Mr J.G.S., a lawyer and investigator who has worked with Senator Marty, and Mr
Crofton Black, an investigator with the Bureau of Investigative Journalism and British NGO Reprieve,
a British non-governmental organisation representing the interests of some of the detainees held in
Guantánamo.

The evidence included details of how detainees had been ill-treated, the movement of aeroplanes
known to have been used by the CIA for rendition operations, how the CIA had paid foreign
governments to host sites and how the programme had developed over the years.

In particular, the 2014 US Senate Committee report on CIA torture provided information about thetransfer dates and times, and the interrogation schedules of CIA detainees. It also spoke clearly of
cooperation with the domestic authorities and of them being provided with millions of dollars to
show appreciation for their “support” for the CIA extraordinary rendition programme. The actual
amount and the concrete recipients were redacted out of the report.

A careful reading of the report allowed the Court to conclude that the detention centre known as
Site Violet, one of the places where Mr Husayn had been held, was located in Lithuania.

Based on all the material, the Court concluded that it was clear that Lithuania had hosted a CIA
detention centre from 17 or 18 February 2005 to 25 March 2006 and that Mr Husayn had been held
there.

The Lithuanian authorities had known of the purpose of the CIA’s activities on its territory and had
cooperated. It must also have been clear that such actions had threatened Mr Husayn’s rights.
Overall, his allegations fell within Lithuania’s jurisdiction and could make it answerable under the
Convention.

Article 3

The Court found a violation of the procedural aspect of Article 3 as Lithuania had failed to carry out
a proper investigation related to Mr Husayn. The investigation had tailed off from June 2010 and
prosecutors had ignored Reprieve’s suggestions to trace US citizens who had been on board one of
the aeroplanes which had landed in Lithuania and whose passport details they had possessed.
The reopened investigation, which included a request for legal assistance to the United States, had
also made no meaningful progress.

On the substantive aspect of Article 3, the Court noted that Mr Husayn’s statements to the Tribunal
in March 2007 and in the 2007 ICRC report provided a shocking account of the cruel treatment he
had suffered in CIA custody. He had not been subjected to such severe ill-treatment in Lithuania, but
his prior suffering had to be taken into account when considering his detention there.

In any event, in Lithuania he had also experienced an extremely harsh detention regime, which,
according to CIA documents, had as standard practice included blindfolding or hooding, solitary
confinement, the continuous use of leg shackles, and exposure to noise and light.

Such suffering amounted to inhuman treatment within the meaning of the Convention, which
Lithuania had enabled by cooperating with the CIA. Moreover, it had allowed his rendition out of the
country and exposed him to a foreseeable serious risk of further ill-treatment.

Article 5

Lithuania had enabled the CIA to transport Mr Husayn in and out of the country and hold him in
secret. Unacknowledged detention was a complete negation of the guarantees of the Convention
and a serious violation of Article 5.

Article 8

The interference with Mr Husayn’s rights had taken place in the context of fundamentally unlawful
and undisclosed detention. There had been no justification for it under Article 8 and his rights under
this provision had therefore been breached.

Article 13

The Court observed that it had already found that the investigation into Mr Husayn’s allegations had
fallen short of Convention standards. He had also had no effective remedy available to complain
about violations of his rights. There had been a breach of Article 13, in conjunction with Article 3.

Article 46

The Court noted that Lithuania had asked for some legal assistance from US officials during the
reopened investigation. However, it recommended that the country make further representations to
the United States to remove, or at the very least, seek to limit the effects of the violations of the
applicant’s rights.

In addition, the reopened domestic investigation should be concluded as swiftly as possible once the
circumstances of Mr Husayn’s transport, detention and removal from Lithuania had, as far as possible, been clarified. The investigation should also aim to allow the domestic authorities to identify and, where appropriate, punish those responsible. Just satisfaction (Article 41) The Court held that Lithuania was to pay the applicant 100,000 euros (EUR) in respect of nonpecuniary damage, and EUR 30,000 in respect of costs and expenses(echrcaselaw.com editing). 


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