Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 2+P6-1 - Right to life (Article 2-1 - Death penalty;Life) (Article 1 of Protocol No. 6 - Abolition of the death penalty;Abolition of the death penalty-{general});Violation of Article 3+P6-1 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Article 1 of Protocol No. 6 - Abolition of the death penalty;Abolition of the death penalty-{general});Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1965. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba.

The facts of the case may be summarised as follows.

At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates. By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report:

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

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

After a brief stay at the “Salt Pit”, US agents took him to another secret CIA prison in Bangkok, Thailand, code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he remained until 4 December 2002. Mr Abu Zubaydah was detained in the same facility throughout the relevant time (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, judgment of 24 July 2014, §§ 86 and 89). At this site, the interrogations of both applicants were videotaped.

According to the 2004 CIA Report, at that black site the CIA subjected the applicant to the EITs (see also paragraphs 53–61 above) from 15 November 2002 until 4 December 2002.

In the chapter “Detention and Interrogation Operations at [NAME REDACTED]”, which is in most part redacted, paragraphs 74-76 read:

“ 74. [REDACTED] psycholgist/interrogators [REDACTED] led each interrogation of Abu Zubaydah and Al-Nashiri where EITs were used. The psychologist/interrogators conferred with [REDACTED] team members before each interrogation session. Psychological evaluations were performed by [REDACTED] psychologists.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.)

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 2005VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151).

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).

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 2006XIII (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.).

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 1999V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004VII).

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).

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).

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.”

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).

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 8589 above).

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).

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 314315 above).

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).

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).

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).

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).

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.

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).

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.

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).

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).

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)

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).

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.

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.

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.

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 CIAassociated 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”.

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).

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).

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).

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).

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.

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).

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).

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).

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).

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.

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.

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).

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).

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).

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.

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).

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).

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).

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).

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).

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).

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 266272), 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.

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).

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 ElMasri, cited above, §§ 217-221).

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.


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Robert Spano;Síofra O’Leary

The applicant was born in 1959 and lives in Baktalórántháza.

Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998.

In response to a request lodged on 16 October 2001, the applicant was granted a disability pension (rokkantsági nyugdíj) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007.

As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012.

The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period.

The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used.

As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority.

At the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR).

On 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision.

The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007.

Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate.

In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance (rehabilitációs járadék). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance.

As of 1 January 2012, a new law on disability and related benefits (Act no. CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011.

On 20 February 2012 the applicant submitted another request for disability allowance (rokkantsági ellátás). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014.

Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza.

On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged.

In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for 947 days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012.

The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal.

From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either.

In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance (rendszeres szociális segély), but her request was denied because she did not meet the statutory requirements.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing;Exclusion of public)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1984 and lives in Volgograd.

On 26 October 2002 the applicant was arrested on a charge of murder. On 28 October 2002 the Traktorozavodskiy District Court of Volgograd authorised his pre-trial detention. The applicant remained in custody during the investigation and pending the trial.

On 24 November 2003 the Volgograd Regional Court scheduled the trial of the applicant and seven other defendants for 24 December 2003. The court also ruled that the trial was to be held in camera.

On 26 April 2005 the Volgograd Regional Court convicted the applicant of murder committed out of national hatred and sentenced him to nine years’ imprisonment. The applicant appealed.

On 22 February 2006 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. The court decided to hear the applicant’s case in his absence. His lawyer was present and made submissions to the court.

On 30 August 2010 the applicant was released on parole.

On 8 December 2010 the Presidium of the Supreme Court quashed the judgment of 22 February 2006 by way of supervisory review and remitted the matter for fresh consideration.

On 1 February 2011 the Supreme Court held a new appeal hearing. The court found that the case had become time-barred under the statute of limitations and discharged the applicant from serving a prison sentence. The applicant’s lawyer was present and made submissions to the court. The applicant did not attend the hearing.


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1948 and lives in Kyiv.

On 24 August 2011, as part of the Independence Day festivities, there was a wreath-laying ceremony at a monument to Taras Shevchenko, a famous Ukrainian poet and public figure, with the participation of the then President of Ukraine Mr Yanukovych.

The applicant, as a member of the opposition party Batkivshchyna, took part in a public gathering organised by it on the occasion of Independence Day. According to her, the beginning of the meeting was delayed because of the aforementioned wreath-laying ceremony.

After the ceremony the applicant approached the wreath laid by Mr Yanukovych and detached part of the ribbon bearing the words “the President of Ukraine V.F.Yanukovych” without damaging the wreath itself. This was meant to express her opinion that Mr Yanukovych could not be called the President of Ukraine for a number of reasons.

The case file contains several copies of photos of the applicant in the aforementioned setting. In four of them she is seen near the wreath detaching the ribbon from it in a careful and concentrated manner, without changing the position of the wreath. In another photo the applicant holds the already detached ribbon in front of her and seems to be either laughing or saying something. There are many people next to her. In the last photo the applicant seems to be trying to tear the ribbon apart. Her face expresses either effort or contempt.

The applicant’s action was video recorded by one of the police officers in charge of maintaining public order. The aforementioned photos may also have been taken by the police.

On the same day the police officer in question established the applicant’s identity and reported the incident to his superiors.

On 25 August 2011 the applicant was apprehended (for less than three hours – see paragraph 16 below) and taken to the Shevchenkivskyy district police station, where a report was drawn up indicating that her actions amounted to petty hooliganism in breach of Article 173 of the Code of Administrative Offences. The applicant, who was not allowed to consult a lawyer, refused to sign that report.

On 30 August 2011 the Shevchenkivskyy District Court of Kyiv, at a hearing attended by the applicant and the lawyer retained by her in the meantime, found the applicant guilty of petty hooliganism on account of the incident of 24 August 2011 and sentenced her to ten days’ administrative detention. The court explained that it had decided to apply such a penalty given the nature of the offence, the applicant’s cynical attitude towards it and her failure of admit her guilt. The applicant submitted at the hearing that she had been expressing her civil position and that she had not damaged the wreath, but had merely taken a piece of the ribbon to show her children and grandchildren and also her acquaintances who had voted for Mr Yanukovych.

On the same day the applicant’s lawyer lodged an appeal on her behalf. He argued that the applicant’s action had been an expression of her civil position and that it had been neither prompted by hooligan motives nor aimed at disturbing public order or breaching the peace. The appeal further referred to Article 10 of the Convention and the Court’s case-law, according to which the notion of “expression” concerned not only words, but also actions intended to convey a certain message or information. Referring to paragraph 16 of Resolution of the Plenary Supreme Court no. 10 of 22 December 2006 (see paragraph 18 below), the lawyer also submitted that the penalty imposed was excessively severe.

On 21 September 2011 the Kyiv City Court of Appeal, at a hearing attended by the applicant’s two lawyers, upheld the first-instance court’s decision in a final ruling. By that time the applicant had served her sentence in full.


András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicants are Russian nationals living in various regions of the Russian Federation. The numbers and dates of lodging of their applications, and their full names, dates of birth and places of residence are set out in the Appendix.

, may be summarised as follows.

On various dates between 2005 and 2011 the police received information, in each of the applicants’ cases, implicating the applicants in drug-dealing. On the basis of that information, the police decided to carry out an undercover operation in the form of a test purchase of drugs from the applicants by undercover agents.

In all four cases, the police invited two randomly chosen attesting witnesses to observe the progress of the undercover operation. The attesting witnesses confirmed in their pre-trial depositions that the undercover agents had been searched prior to the test purchase and that they had bought controlled substances from the applicants with the banknotes marked and supplied by the police. They also attested that after the test purchase the police had searched the applicants or their premises, and seized and sealed controlled substances found on the applicants and other evidence that had been gathered.

The police also documented each step of the undercover operations. In particular, they drew up records of personal inspections of undercover agents, examinations of banknotes, test purchases, personal search and crime scene inspections.

The applicants were criminally prosecuted for drug-related offences under the Russian legislation in force. The undercover agents and police officers who had participated in test purchases of drugs testified during the trial, and as participants in the criminal proceedings, the applicants were able to question them. They were also able to submit various motions, present arguments in their defence and lodge objections. The attesting witnesses summoned by the prosecution were sought for but they failed to appear for various reasons, and the national courts read out their pre-trial statements regarding the investigative measures and admitted them as evidence despite the applicants’ objections. The procedural records drawn up by the police were also admitted as evidence by the courts. The contents of the pre-trial depositions of the attesting witnesses were identical to the relevant police records.

The applicants appealed against the judgments convicting them, submitting, inter alia, that their convictions had been unfair due to their inability to examine the attesting witnesses. The judgments were, however, upheld on appeal and became final.

Article 7 § 1 of the CCP (as in force at the material time) provided that the court, prosecution and investigators could not apply laws in breach of the provisions of the CCP.

Article 7 § 3 further provided that if the court, prosecution or investigators breached the provisions of the CCP in the course of criminal proceedings, evidence obtained as a result of such breach would be rendered inadmissible.

Chapter II of the CCP contained two different provisions governing the participation of witnesses and attesting witnesses in the criminal proceedings.

Article 56 provided that,

“1. A witness (свидетель) is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify.”

If a witness fails to appear for no valid reason, his or her appearance may be enforced.”

Article 60 provided that,

“An attesting witness (“понятой”) is a person disinterested in the outcome of the criminal case who is invited by an investigator to attest to an investigative measure being carried out and also to its substance, progress and results. Minors who are involved in a criminal case and their close relatives and relatives, and also investigators, cannot act as attesting witnesses.”

Article 164 of the CCP stipulated that body searches, searches of premises, seizure of evidence and other investigative measures had to be carried out by order of the investigators. It further required the recording of all investigative measures carried out.

Article 166 of the CCP established that all participants in investigative measures should receive a record thereof. They had to be informed of their right to make amendments and clarifications to the record and have them noted in it. Their remarks should be acknowledged and signed by the persons making them.

Article 170 of the CCP required at least two attesting witnesses to be present during, inter alia, the inspection of objects relevant to the criminal case, body searches, searches of premises and seizure of evidence.

Article 38 provided for admitting into evidence the records of investigative measures and trial records if they complied with the requirements of the CCP.

Article 75 provided that evidence obtained in breach of the provisions of the CCP would be deemed inadmissible. It further provided that inadmissible evidence would have no legal force and could not be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings.

Article 89 prohibited the use of the results of a criminal investigation if they failed to satisfy the rules of evidence laid down in the CCP.

Article 217 and Article 219 stipulated the investigator’s obligation to examine and rule on motions submitted by the defendant after the review of materials of the criminal case, and to inform the defendant of his right to appeal against an adverse decision on his motion.

Article 235 provided that parties to a criminal case could request a trial court to exclude certain evidence. As a general rule, the burden of proof would be on the party which submitted a motion to exclude evidence, except where a defendant sought to exclude evidence obtained in violation of the provisions of the CCP, in which case the prosecution would have to provide evidence to the contrary.

Article 303 made it a crime for investigators, prosecutors and defence attorneys to forge evidence.