Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;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 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);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 13+5 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Deprivation of liberty;Article 5 - Right to liberty and security);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);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 1971. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba.

The applicant’s lawyers referred to what they called “the unprecedented restrictions on communication between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant’s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified, so that counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without approval by the detaining authority.

A request for release of an affidavit from Abu Zubaydah had been pending before the US authorities for more than two years but, as was routinely the case, this request would involve the need for litigation in a US court. In addition, if the document were released, it would likely be heavily redacted. Attempts to declassify drawings and writings by the applicant during his detention had been unsuccessful.

According to the applicant’s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”. For that reason, his case was presented by reference principally to publicly available documentation.

The facts of the case, as submitted on behalf of the applicant by his representatives, may be stated as follows.

On 27 March 2002 agents of the United States and Pakistan seized the applicant from a house in Faisalabad, Pakistan. In the course of the operation, he was shot several times in the groin, thigh and stomach, which resulted in very serious wounds. He was taken into the custody of the CIA.

At the time of his capture the applicant was considered one of the key Al’Qaeda members and described by the American authorities as the “third or fourth man” in Al’Qaeda, who had had a role in its every major terrorist operation, including the role of a planner of the attacks on 11 September 2001. It was also alleged that he had been Osama bin Laden’s senior lieutenant. As mentioned above, he was the first socalled “high-value detainee” (“the HVD”) detained by the CIA at the beginning of the “war on terror” launched by President Bush after the 11 September 2001 attacks in the United States (see paragraphs 49 and 54-55 above).

The 2004 CIA Report stated that the applicant’s capture accelerated the development of the HVD Programme. Paragraph 30 of the Report read:

“30. [REDACTED] The capture of Senior Al-Qaida operative Abu Zubaydah on 27 March 2002 presented the Agency with the opportunity to obtain actionable intelligence on future threats to the United States from the most senior Al-Qaida member in U.S. custody at that time. This accelerated CIA’s development of an interrogation program [REDACTED]”

Subsequently – for more than four years from the day on which he was seized in Faisalabad until his transfer from the CIA’s to the US Department of Defense’s custody in September 2006 – the applicant was held in incommunicado detention in secret detention facilities, the so-called “black sites” run by the CIA around the world.

After his arrest, the applicant was transferred to a secret CIA detention facility in Thailand code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he was interrogated by CIA agents and where a variety of EITs were tested on him. Mr Al Nashiri was detained in the same facility as from 15 November 2002 (see paragraphs 8990 below and Al Nashiri v. Poland, no. 28761/11, judgment of 24 July 2014, §§ 85 and 88). At this site, the interrogations of both applicants were videotaped.

The 2004 CIA Report referred to the videotapes of interrogations as follows:

“Headquarters had intense interest in keeping abreast of all aspects of Abu Zubaydah’s interrogation [REDACTED] including compliance provided to the site relative to the use of EITs. Apart from this, however, and before the use of EITs, the interrogation teams [REDACTED] decided to videotape the interrogation sessions. One initial purpose was to ensure a record of Abu Zubaydah’s medical condition and treatment should he succumb to his wounds and questions arise about the medical care provided to him by CIA. ... There are 92 videotapes, 12 of which include EIT applications. ...”

The 2009 DOJ Report, relying on the 2004 CIA Report, also confirmed that the interrogation sessions were videotaped:

“According to [the 2004 CIA report], the interrogation team decided at the outset to videotape Abu Zubaydah’s sessions, primarily in order to document his medical condition. CIA OIG examined a total of 92 videotapes, twelve of which recorded the use of EITs. Those twelve tapes included a total of 83 waterboard applications, the majority of which lasted less than ten seconds.”

It further added:

“After the on-site interrogation team determined that Abu Zubaydah had ceased resisting interrogation, they recommended that EITs be discontinued. However, CTC headquarters officials believed the subject was still withholding information [REDACTED] Senior CIA officials reportedly made the decision to resume the use of the waterboard [REDACTED] to assess the subject’s compliance. After that session [REDACTED] agreed with the on-site interrogators that the subject was being truthful, and no further waterboard applications were administered.”

The 2009 DOJ Report and the 2004 CIA Report confirmed that on 15 November 2002 Mr Al Nashiri was brought to the same facility, that they both were subjected to EITs, and that they both were subsequently transferred to another CIA “black site”.

Paragraph 7 of the 2004 CIA Report read:

“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.”

Paragraphs 74-76 of the same report read:

“ 74. [REDACTED] psychologist/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, in their written observations filed on 16 September 2013, 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 had been given notice of the application.

They further added that they could not address in detail the Court’s questions concerning the violations of Articles 3, 5, 6 and 8 of the Convention due to the fact that the criminal investigation was still pending.

As it could not be assumed that the applicant had been transferred to and from Poland and had legally or illegally been detained on its territory, no answer could be given at this stage to questions concerning his alleged treatment contrary to Article 3, his incommunicado detention in a secret detention facility and deprivation of access to his family. Likewise, no answer could be given to the question concerning the involvement of the Polish authorities in the events complained of.

At the public 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 12 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 assessment, this knowledge was already accessible, albeit via other channels, in the public domain.

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 public hearing, concerning the injured-party status accorded to the applicant and Mr Al Nashiri 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 the facts of the case, the probative value of the evidence before the Court, the burden of proof and the standard of proof as applicable in the present case and Poland’s knowledge of the HVD Programme stated, in particular, as follows.

On giving notice of the application to the respondent Government, the Court asked the applicant’s representatives to explain the discrepancy between the statements regarding the dates of his detention in 2002-2003.

In particular, the Court referred to the dates given in his application and those given in the applicant’s own account of his detention as rendered in the verbatim record of the interview with him included in the 2007 ICRC Report. In the application, it was stated that he had had been detained in Poland from 5 December 2002 to 22 September 2003 (see paragraphs 82108 above), whereas in the interview, he had recounted details of his ill-treatment “regarding his detention in Afghanistan where he [had been] held for approximately nine months from May 2002 to February 2003” (see paragraph 101 above).

The applicant’s representatives provided the following explanation.

The facts of the applicant’s case were based on a wide range of publicly available documents, reports and investigations into the CIA HVD Programme that had come into the public domain only after he had been transferred from Poland on 22 September 2003.

Given that no information as to the places and periods of his detention had been given to him and that the range of abusive interrogation techniques had been inflicted on him, the applicant could not be expected to have known his precise location when he had been held in CIA custody. In fact, as demonstrated by the CIA declassified material, concerted and meticulous efforts had been made by the CIA to prevent High-Value Detainees from knowing their transfer destinations. On his transfers from one CIA black site to another the applicant had been shackled and blindfolded, with ear muffs restricting his hearing and a hood placed over his head. At the black site, he had been subjected to detention conditions that had included “white noise/loud sounds and interrogations aimed at creating “a state of learned helplessness and dependence” and designed to psychologically “dislocate” him.

As a result of his ill-treatment he was suffering from serious and debilitating physical and mental condition.

Taking all the circumstances into account the applicant could not have been expected at the time of making the statement to the ICRC to have been able to provide an accurate and detailed account of where he had been detained and for how long. Should any discrepancy arise concerning such details, the applicant’s representatives asked the Court to take into account the exceptional features of the case, in particular the difficulty in obtaining evidence from the applicant and the fact that this case presented extraordinary challenges for the victim. As stated in the application, the applicant’s lawyers were not in a position to provide the Court with further statements from the applicant. He was prevented from communicating with the outside world, including the Court, and his US counsel were precluded from disclosing to the Court any information that he conveyed to them.

The applicant maintained that numerous documents submitted to the Court, including reports prepared by international organisations and oral evidence from the experts and the witness confirmed that he had been detained in Poland from 5 December 2002 to 22 September 2003.

There was no doubt that the CIA secret prison in Poland had been established deliberately. Senator Marty, in his 2007 Report, had highlighted the existence of bilateral agreements between the Polish Government and the CIA, allowing this secret prison to operate. Senator Pinior, in his affidavit, had given evidence of an agreement drawn up for the purpose of regulating the existence of this prison and of documents that illustrated the “provision of practical logistical support” and “servicing” of the prison site by the Polish authorities.

At the public hearing, the applicant’s representatives said that in the light of the documentary evidence and the experts’ testimony, it was now proven beyond reasonable doubt that Mr Abu Zubaydah had been transferred into Poland. It was also beyond any credible dispute that he had been imprisoned at a CIA secret prison in Stare Kiejkuty.

A letter from the Polish Border Guard to the Helsinki Foundation of Human Rights confirmed that plane number N63MU landed in Szymany on 5 December 2002 with eight passengers and four crew and departed on the same day with no passengers. This account of the aircraft’s arrival was verified by a handwritten log of landings and take-offs at Szymany airport. The experts had explained how intense and multiple efforts had been made to disguise the true route of this flight. Information disclosed by Eurocontrol to Senator Marty for his 2007 Report showed that false flight plans had been filed for N63MU, omitting Szymany from the record of the plane’s movements. Further evidence pointing to concerted attempts to cover up these flights was provided by Senator Marty in his 2007 Report, which noted that the filing of false flight plans had been done so that “their actual movements would not be tracked or recorded – either ‘live’ or after the fact – by the supranational air safety agency Eurocontrol. The system of cover-up entailed several different steps involving both American and Polish collaborators”.

The applicant thus submitted that, in the light of the entirety of this evidence, it was clear that he had been rendered out of Thailand on the flight in question and taken to Poland.

As also demonstrated by evidence given by the experts and witness to the Court, after over nine months of secret detention in a CIA black site in Poland, on 22 September 2003 Abu Zubaydah was then transferred from Poland, on board N313P, a plane that had at this time been flying under official “State” status and was already known to the Court from its role in the El-Masri case (see El-Masri, cited above, §§ 46 and 159)

In the applicant’s view, this evidence taken together clearly established that he had been imprisoned on Polish territory. The evidence before the Court was detailed, specific and consistent, and concerned the entire period of his detention in Poland, as well as the circumstances surrounding that period.

This evidence had been uncovered in the face of determined efforts by State agents and State organisations to stymie any attempt at getting to the truth of Abu Zubaydah’s case.

In that context, the applicant also pointed out that Poland had never provided an explanation of the events as described in his application and further pleadings. Instead, it had relied on a secretive and stalled investigation to deflect attention away from its failure to cooperate in the Court’s examination of the case.

In the applicant’s submission, the nature of abuse by the CIA in the context of the extraordinary rendition operations had been a matter of public knowledge in 2002-2003. This had been documented by the applicant from both Polish and international sources disclosing widespread abuse of terrorist suspects in the custody of the US authorities at the material time.

Moreover, evidence before the Court confirmed that numerous State agents and State authorities at all levels of the Polish Government had been involved, in different ways, in the CIA secret prison system. As Senator Pinior stated at the fact-finding hearing, the Polish authorities had had full knowledge of the illegality of this operation and they had known that it had been in breach of the Polish Constitution and that it had been clear that the Polish authorities had cooperated with the CIA.

According to the 2007 Marty Report, the former President Kwaśniewski had been “the foremost national authority on the High-Value Detainee programme”. Indeed, President Kwaśniewski confirmed this in an interview in Poland where he had stated that ”of course, everything [had taken] place with my knowledge” and that “the decision to cooperate with the CIA [had] carried a risk that the Americans would use unacceptable methods”. He also asked whether, if a CIA agent had brutally treated a prisoner in the Warsaw Marriott, should the management of that hotel be charged for the actions of that agent (see also paragraph 230 above). This, in the applicant’s view, provided a telling insight into the Polish Government’s attitude to the CIA HVD Programme and demonstrated, at the highest level of the Government, involvement in the operation of the secret prison and knowledge of the illegal methods used by the CIA.

The CIA prison could not have operated on Polish territory without the support and assistance of the Polish Government.

While the full form and extent of the involvement of the Polish authorities and agents was not known owing to the secrecy surrounding the CIA operations, it was clear that Poland through its acts and omissions had cooperated with the CIA and facilitated the applicant’s secret detention and ill-treatment.

The level of cooperation was readily illustrated by the fact that Poland had entered into, as mentioned in the 2007 Marty Report, “operating agreements” with the US authorities, specifying the use and maintenance of secret detention facilities whereby it had “agreed to provide premises in which these facilities [had been] established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference”. As stated in that report, the operational agreements for different types of cooperation had been “negotiated on the part of [sic] the President’s office by the National Security Bureau”.

Accordingly, the assistance and support given by Poland included ensuring physical security to facilitate the CIA’s detention and transfer of detainees under the HVD Programme, assigning Polish intelligence agents to the CIA at the relevant time to provide open-ended assistance for their dealings in Poland, navigating CIA aircraft through Polish airspace without completed flight plans, clearing the Szymany airport runway of other aircraft, providing vehicles and staff to allow the CIA rendition flights to land, including the planes transporting the applicant and securing the route from Szymany airport to Stare Kiejkuty – all this in order for the CIA to have their prisoners secretly detained.

AI/ICJ stressed that already on 16 September 2001, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted. AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it had been called the “global war on terror” , in order to circumvent human rights protections.

From early 2002 it had become clear that non-US nationals outside the USA suspected of involvement in international terrorism had been at a real risk of secret transfer and arbitrary detention by US operatives.

In particular, from January 2002 through 2003, the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantànamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, and detention without charge or trial or access to the courts, lawyers or relatives. By mid-July 2003, there had been approximately 660 detainees held there.

Cases of arbitrary detention and secret transfer had continued to emerge during 2002. In April 2002, AI had reported that, in addition to the case of Abu Zubaydah, the US authorities had transferred dozens of people to countries where they could be subjected to interrogation tactics, including torture.

In December 2002 the Washington Post had reported on a secret CIA facility at Bagram, Afghanistan and the CIA’s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the agency.

Thus, as early as the end of 2002, any Contracting Party had been or should have been aware that there had been substantial and credible information in the public domain that the USA had engaged in practices of enforced disappearance, arbitrary detention, secret detainee transfers, torture and other forms of ill-treatment.

In its annual reports covering the years 2002 and 2003, AI had made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in respect of a number of other countries. Paper copies of these reports had been widely distributed, including to the media and governments.

By mid-2003 no Contracting Party could reasonably have found credible the USA’s assurances that it had been committed to human rights and the rule of law in the counter-terrorism detention context, including the prohibition of torture and other ill-treatment.

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 and evidence obtained by the Court throughout the proceedings (see paragraphs 370-373 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 facts of the case as related by the applicant and as to the evidence from various sources which was admitted by the Court and summarised above (see paragraphs 42-332 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, ECHR 2006XIII (extracts); 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 v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 97, 18 December 2012)

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 El-Masri, cited above, § 152; Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva v. Russia, no. 7615/02, §§ 114-115, ECHR 2006XIII (extracts).

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 27 March 2002, when the applicant was captured by the CIA in Pakistan, 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 69 and 82-121 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 53-68, 102-103 and 276 above).

It is submitted that since 27 March 2002 the applicant had not had contact with persons from the outside world, save the ICRC team in October and December 2006 and, following his transfer to the jurisdiction of military commission in the Guantánamo Naval Base, his US counsel with top-secret security clearance. All his communication with his counsel has been presumptively classified. In fact, he is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family (see paragraphs 80, 101 and 117-118 above).

The above circumstances have inevitably had an impact on the applicant’s ability to plead his case before this Court. Indeed, as his representatives maintained, 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.

The Court notes that the CIA official documents clearly confirm the date of the applicant’s capture – 27 March 2002 – the event, which, as stated in the 2004 CIA Report – “accelerated CIA’s development of an interrogation program” (see paragraph 84 above).

Those documents also confirm that by November 2002 the Agency had the applicant and Mr Al Nashiri, 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 and that their interrogations were videotaped. The applicant was first to have been detained and interrogated there, Mr Al Nashiri was brought to that facility as a “second prisoner” on 15 November 2002. The interrogation of Mr Al Nashiri “continued through 4 December 2002” (see paragraphs 84-87 above).

Those documents also attest to the fact that as from 15 November 2002 the applicant and Mr Al Nashiri 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 Mr Al Nashiri’s enhanced interrogations, including the so-called “waterboarding”, “continued through 4 December 2002” (see also Al Nashiri, cited above, § 401).

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 90-91 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 paragraph 89 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 Al Nashiri 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 308309 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 on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to “another CIA black site” on 4 December 2002 (see also Al Nashiri, cited above, § 404).

It is alleged that on 5 December 2002 the applicant, together with Mr Al Nashiri, 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 (see paragraphs 92-107 above).

It is further alleged that during his undisclosed detention in Poland the applicant was subjected to various forms of ill-treatment and abuse and deprived of any contact with his family. He was held in Poland until 22 September 2003. On that date he was transferred by means of extraordinary rendition from Polish territory, on a Boeing 737 registered as N313P, to other CIA secret detention facilities elsewhere (see paragraphs 109-117 above).

The Court notes that the fact that after 4 December 2002 the applicant and Mr Al Nashiri were transferred 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 107 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 Eurocontrol 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 95-96, 252, 265, 281-286, 310 and 312 above).

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

(1) the aircraft 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 aircraft N313P, a Boeing 737, landed in Szymany en route from Kabul, Afghanistan on 22 September 2003. The hours of the arrival and landing were recorded by PANSA as 18:50 and 19:56 respectively. A hand-written log of take-offs and landings at Szymany airport recorded that N313P arrived in Szymany on 22 September 2003 at 21:00 (local time) and departed at 21:57 (local time). The Polish Border Guard’s official documents recorded that on arrival there were no passengers and seven crew and on departure there were five passengers and seven 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 62 and 276 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 22 September 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 22 September 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 elsewhere on board N313P on 22 September 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 322 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 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 Al Nashiri in 2002-2003 (see paragraphs 305-312 above).

It has already been established that on 4 December 2002 the applicant was transferred from the black site in Bangkok together with Mr Al Nashiri 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 93-96 and 408 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 Al Nashiri 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 310-311 and 321 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 paragraphs 93-96, 248, 265, 281-285, 310, 312 and 321 above).

Nor have they explained the reasons for the subsequent series of landings of the CIA rendition aircraft (see paragraph 286 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 Mr Al Nashiri 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 paragraph 311 above). The series ended with the landing of N313P on 22 September 2003 – the date indicated by the applicant 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 paragraph 312 above and also Al Nashiri, cited above, § 414). Indeed, no other CIA-associated aircraft appeared in Szymany after that date (see paragraph 286 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 368-369 above), the Court will draw inferences from the evidence before it and from the Government’s conduct.

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 22 September 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, in contrast to Mr Al Nashiri whose treatment in CIA custody in the relevant period is described at least partly in the CIA documents (see paragraph 107 above and Al Nashiri, cited above, §§ 416417), the unredacted sections of those documents give very sparse information about the applicant’s situation. The 2004 CIA Report merely states that in December 2002 the purpose of the interrogation team assigned to the black site in which the applicant was detained was to “interrogate Al Nashiri and debrief Abu Zubaydah“ (see paragraph 107 above).

As confirmed by the experts, upon the point of his transfer to Poland, the applicant was described as having been compliant and was undergoing a process known as “debriefing”, which was interviewing for the provision of intelligence and information rather being subjected to the EITs of a more aggressive or harsh nature. In their view, it was not known what techniques were applied to the applicant in Poland (see paragraph 311 above).

The 2004 CIA Report, with reference to the applicant’s detention between August 2002 and 30 April 2003, that is, during the period which partly overlaps with his detention in Poland, seems to confirm that the applicant at some point became “compliant”. It states that after the applicant was subjected to the waterboard “at least 83 times during August 2002” and during the period between the end of the use of the waterboard and 30 April 2003 he “provided information”. In that respect, the document speaks of the applicant’s “increased production”, which appears to have meant that the aims of the enhanced interrogation had been achieved, although the authors of the report expressed doubts as to whether his “compliance” should be attributed to the use of waterboard or the length of his – undisclosed – detention (see paragraph 106 above). The 2009 DOJ Report also refers to the fact that at some point the use of the waterboard on the applicant was discontinued (see paragraph 88 above).

In the Court’s view, the above elements confirm that the use of this particular interrogation technique stopped but this left open the application of other EITs on the applicant throughout his undisclosed detention, including in the period between 5 December 2002 and 22 September 2003 in Poland.

Furthermore, the Court finds it inconceivable that during the applicant’s detention in Poland any of the standard methods applied by the CIA to persons detained under the HVD Programme as a matter of routine were lifted in respect of him on account of his “compliance”.

It is to be recalled that the applicant was the first High-Value Detainee for whom the EITs were specifically designed by the CIA and on whom they were tested before ever being applied to other captured terrorist suspects as from November 2002 (see paragraphs 49 and 54-59 above). Having regard to the fact that the CIA “legally sanctioned interrogation techniques” encompassed a variety of measures, ranging from “standard” to “enhanced” and that the CIA applied to each and every detainee the same “standard procedures and treatment” (see paragraphs 53 and 60-68 above), the Court finds it established beyond reasonable doubt that the treatment to which the applicant was subjected in CIA custody in Poland must have included the elements defined in the CIA documents as those routinely used in respect of High-Value Detainees (see paragraphs 51-68, 98 and 102-105 above).

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 Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU;

(2) from 5 December 2002 to 22 September 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 “debriefed” by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents;

(4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.

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 287-296 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 265 above). Furthermore, the 2007 Marty Report contained a compilation of testimonies obtained from confidential sources among Szymany airport employees, civil servants, security guards, and Border Guard and military intelligence officials, who had given an account of what had happened at the time immediately following the landing of the CIA-associated aircraft landed in Szymany (see paragraph 254 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 252, 265 and 285 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 70-72 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 413 above), flight plans were disguised, false plans were filed and PANSA navigated the aircraft into Szymany without a valid flight plan (see paragraphs 252, 310 and 312 above).

A detailed analysis of the rendition circuit of the flight N379P – on which, as established in Al Nashiri, Mr Al Nashiri was transferred out of Poland on 6 June 2003 (see also paragraph 412 above and Al Nashiri, cited above, § 417), 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 285 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 253, 286 and 311 above).

The CHRGJ Report also gave a detailed analysis of the rendition circuit of the flight N313 P – on which, as established above (see paragraph 408 and 419 above) the applicant was taken out of Poland on 22 September 2003. While it does not appear that on this occasion Jeppesen filed any “dummy” flight plans for the flight from Kabul to Szymany, it did, as in case of N379P’s flight circuit in June 2003, invoke a special status designation. As stated in that report, such “special status exemptions in their invocation alone demonstrate a collaborative planning on the part of the states whose territory or airspace is being traversed, because they are only granted when specifically authorised by the national authority whose

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 248–249 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 251, see also paragraph 234 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 315 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 323 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 297 and 328 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 269 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 236 above; the relevant letter is also mentioned in paragraph 429 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 122 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 424-430 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 242 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 253 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 314 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 264 above). The same observations were made in the 2007 EP Resolution (see paragraph 269 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 302 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 300 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 264 and 305 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 234 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 62, 276 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 324 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 297 and 329 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 324 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 the applicant was transferred from Poland; see paragraphs 408 and 419 above) 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 289-290 and 312 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 290 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 would roll’” (see paragraph 294 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 420 above), they perceived those events as “spies” coming or a “changeover of intelligence staff” (see paragraph 291 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 208–223 above and Al Nashiri, cited above, §§ 384385 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 224–333 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 47-68, 76-79, 235-255, 260-269, 275-280 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 Al Nashiri, 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 47, 55 and 60 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 276 above). The reports following the Marty Inquiry and the Fava Inquiry emerged earlier, in 2006-2007 (see paragraphs 240-255 and 260266), 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 317 above).

As already stated above (see paragraphs 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 Al Nashiri.

In that regard, the Court has taken into account the various attendant circumstances referred to above (see paragraphs 420-441 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 301, 315-317, 320 and 324–325 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 316-317 and 324-325 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 208-218 and 223-233 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 413-435 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.