Preliminary objections joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Six-month period;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (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;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal;Tribunal established by law);Violation of Article 2+P6-1 - Right to life (Article 2-1 - Death penalty) (Article 1 of Protocol No. 6 - Abolition of the death penalty-{general});Violation of Article 3+P6-1 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Article 1 of Protocol No. 6 - Abolition of the death penalty-{general});Respondent State to take individual measures (Article 46-1 - Parties to case;Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Florin Streteanu;Iulia Motoc;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant was born in 1965 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba

It is to be noted that in the present case involving, as the applicant’s previous application before the Court, complaints of secret detention and torture to which he was allegedly subjected during the extraordinary rendition operations by the United States’ authorities (see paragraphs 22-70 and 78-97 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland, no. 28761/11, § 397, 24 July 2014; see also Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 397, 24 July 2014).

As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities’ custody, based on various publicly available sources of information. The applicant’s version of the facts as stated in his initial application of 1 June 2012 evolved and partly changed during the proceedings before the Court (see paragraphs 115-116 below).

The respondent Government contested the applicant’s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Romania (see paragraphs 395-402 and 419-443 below).

Consequently, the facts of the case as set out below (see paragraphs 98-164 below) are based on the applicant’s account supplemented by various items of evidence in the Court’s possession.

As regards the events preceding the applicant’s secret detention in Poland, i.e. his capture in Dubai, United Arab Emirates, and initial detention from the end of October 2002 to 4 December 2002, in Al Nashiri v. Poland (§§ 401 and 404) the Court held as follows:

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

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).”

The experts, Mr J.G.S and Senator Marty, heard by the Court at the fact-finding hearing in Al Nashiri v. Poland, identified the detention facility as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok, Thailand (see Al Nashiri v. Poland, cited above, § 403).

At “Cat’s Eye” the CIA subjected the applicant to the EITs, including waterboarding from 15 November to 4 December 2002 (ibid. §§ 86-88).

As regards the early period of the applicant’s detention, the 2014 US Senate Committee Report includes the following information. It indicates the date of the applicant’s capture as “mid-October 2002”. According to the report, at that time “he provided information while in custody of a foreign government”. On an unspecified date – i.e. redacted in the 2014 US Senate Committee Report – in November 2002 he was rendered by the CIA to a secret detention site code-named “Detention Site Cobalt”. In Al Nashiri v. Poland that site is referred to as being code-named “Salt Pit” and located in Afghanistan (see Al Nashiri v. Poland, cited above, §§ 83-84). The report states that he was held at that site briefly, for a number of days (redacted in the report), before being transferred to another detention site, identified in Al Nashiri v. Poland as “Cat’s Eye” in Thailand (see paragraph 97 above). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”. The report further states that:

“In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.”

As regards the events after 4 December 2002, in Al Nashiri v. Poland (§ 417) the Court held:

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

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

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

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

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

The events that took place between 5 December 2002 and 6 June 2003 at the CIA detention facility identified in Al Nashiri v. Poland as being code-named “Quartz” and located in Poland, including the use of unauthorised interrogation techniques against the applicant, correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue”.

The 2014 US Senate Committee Report has established that “beginning in June 2003, the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006”.

On the basis of their investigations, research and various material in the public domain the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant’s transfers and identified countries of his secret detention.

Mr J.G.S. stated that the applicant was transported from Poland first to Morocco, second to Guantánamo Bay, third to Romania, then to the fourth site – which, according to him, was with a high degree of probability Lithuania – before being transferred to Afghanistan, the fifth “black site” and, finally back to Guantánamo Bay.

In particular, Mr J.G.S. testified as follows:

“... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate Report that from June 2003 Al Nashiri was moved to five different detention facilities before his ultimate transfer to Guantánamo Bay in September 2006. This provides us with a precise timeframe, June 2003 to September 2006, and it provides us with a precise number of transfers which we then have to correlate with his interrogation schedule and the available flight data to determine where he was held. It is on that basis that we have been able to arrive at the conclusion that he was transported from Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania, to one further site, and with a high degree of probability, Lithuania, before being transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are very limited possibilities as to where the CIA could take its detainees because it always maintained a very small range of sites, and because the planes are the same, they operate upon systematic methodologies, notably dummy flight planning, switching of aircraft and all the other tactical elements described. One can narrow down that probability to a certitude, with the right rigour of investigation, and it is that which we have applied to arrive at these conclusions, which have subsequently been validated in the official record.”

In the light of the material in the Court’s possession the chronology of the applicant’s detention can be described as follows.

In Al Nashiri v. Poland the Court established, inter alia, that in the light of the accumulated evidence, “there [could] be no doubt that 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” (see Al Nashiri v. Poland, cited above, § 408).

It was also established that it had been one of the most notorious rendition aircraft used by the CIA for transportation of its prisoners. The plane N379P set off from Dulles Airport, Washington D.C. on Tuesday 3 June at 23:33 GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries including Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The aircraft returned from Portugal back to Dulles Airport on 7 June 2003 (ibid. §§ 103-106 and 291-292).

Mr J.G.S. at the fact-finding hearing testified as follows:

“As was established in the earlier proceedings, Al Nashiri was taken from Poland to Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003. And after detention there for a period of only 3 months, he was then transferred to the CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report provides extensive detail on the evolution of CIA operations in respect of Morocco and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as having been transferred out of a country which is identifiable as Morocco, to the CIA detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the original agreed timeframe. This passage resides within a section of the report which describes difficult and sometimes acrimonious relations between the CIA and its Moroccan counterparts, and it is evident that, in fact, the date, redacted in this passage, is September 2003, which is precisely the time at which our flight information demonstrates an aircraft arriving in Morocco and transporting detainees onwards to Guantánamo Bay.”

According to Mr J.G.S., the plane N379P took the applicant, together with another CIA detainee, Ramzi bin al-Shibh, from Szymany, Poland to Rabat, Morocco, to a facility lent to the CIA by their Moroccan counterparts. He testified as follows:

“The starting point in assessing Al Nashiri’s own chronology of secret detention in these proceedings should be Poland, because we have it confirmed, as a matter of judicial fact, that Al Nashiri was detained in Poland, having been transported there on the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he found himself in Poland at the end of 2002, during which he was subjected to all the documented abuse, the enhanced interrogation techniques and the unauthorised techniques described in the earlier proceedings, into the calendar year 2003. In the earlier proceedings we presented a range of flights which brought detainees into Poland.

However, the first flight which took detainees out of Poland occurred on 5 and 6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we can see this outward flight from Poland as the starting point of Mr Nashiri’s next chronology of detention. It is stated explicitly June 2003, from that point onwards, Mr Nashiri was detained in five further sites before ultimately being transferred to Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together with another CIA detainee, Ramzi bin al-Shibh, to Rabat, Morocco. Rabat, Morocco, at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts. It was a facility which resided within the Moroccan system, and it is described in explicit detail in the Senate Report. That facility was the same place to which some persons from Guantánamo would be later taken back, but I will explain why Mr Nashiri was not one of those, with reference to the same material. In 2003, according to the report, it was allowed to operate until September, at which point relations became acrimonious and certain conditions were placed upon it. The CIA collected its detainees who were housed there, which included Mr Al Nashiri, on 23 September 2003 in the rendition circuit I demonstrated. That is the date confirmed from the CIA’s own reporting, and the flight confirmed through our investigations, the rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to Morocco as number 1, Guantánamo as number 2.”

The 2014 US Senate Committee Report’s section entitled “Country [name redacted] Detains Individuals on the CIA’s Behalf”, in so far as relevant, reads as follows:

“Consideration of a detention facility in Country [name blackened] began in [month blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [blackened] which had not yet informed the country’ political leadership of the CIA’s request to establish a clandestine detention facility in Country [blackened], surveyed potential sites for the facility, while the CIA set aside [USD] [number blackened] million for its construction.

In 2003, the CIA arranged for a ‘temporary patch’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [blackened] detention facility, until the CIA’s own facility could be built.

By [day/month blackened] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country [blackened]| to the CIA detention facility at Guantánamo Bay, Cuba.”

According to Mr J.G.S, on 23 September 2003 the applicant was transported from Rabat to Guantánamo Bay on the plane N313P.

Mr J.G.S., in the course of the above mentioned PowerPoint presentation at the fact-finding hearing (see paragraphs 18 above and 367-376 below), gave the following details concerning N313P’s circuit of 20-24 September 2003:

“Having departed from Washington, this aircraft, ... N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul.

From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. ...

From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay.”

As established in Husayn (Abu Zubaydah) v. Poland, the plane N313P landed in Szymany, Poland on 22 September 2003 en route from Kabul, Afghanistan. On that day Mr Abu Zubaydah was transferred by the CIA from Poland on board that plane.

The plane set off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries, as well as the U.S. Naval Base at Guantánamo Bay.

These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania, and Morocco. The aircraft flew from Rabat, Morocco to Guantánamo Bay on the night of 23 September 2003, landing there in the morning of 24 September 2003.

In Husayn (Abu Zubaydah) v. Poland (see § 312) Mr J.G.S. gave the following account of the “final rendition circuit” through Poland executed by the N313P plane, a Boeing 737, on 22 September 2003:

“One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end.

In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA’s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.”

The Romanian Civil Aeronautical Authority (Autoritatea Aeronautică Civilă Română – “RCAA”), in its letter of 29 July 2009 (“RCAA letter”) stated that N313P’s itinerary was: Szczytno Airport (which is located in Szymany, Poland) – Constanţa Airport but the airport in Romania at which it landed was Băneasa Airport in Bucharest (see also paragraph 324 below).

The 2014 US Senate Committee Report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces transfer of CIA detainees from Guantánamo to Bay to Country [name blackened]” (see also paragraph 61 above), states:

“Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time.

Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court’s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court’s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [redacted two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities.”

In his application lodged on 1 June 2012 the applicant submitted that sometime between 6 June 2003 and 6 September 2006 Romania had hosted a secret CIA prison, codenamed “Bright Light” and located in Bucharest. The applicant’s rendition and secret detention were related as follows:

“Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 2002. By November 2002, he had been secretly transferred to the custody of the CIA. He was held in various secret locations before being detained in Romania. US agents first took him to a secret CIA prison in Afghanistan known as the ‘Salt Pit’. In Afghanistan, 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’. US agents then took him to another secret CIA prison in Thailand, where he remained until 5 December 2002. According to a United Nations Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al Nashiri from Poland. ...

After his transfer out of Poland, between 6 June 2003 and 6 September 2006 Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA prison in Bucharest, Romania. He was transferred to Guantánamo Bay by 6 September 2006.”

As for the possible date of his rendition to Romania during the period between 6 June 2003 and 6 September 2006 the applicant mentioned 22 September 2003, i.e. the date on which the aircraft N313P executed its “final rendition circuit” through Poland, via Romania and Morocco (see paragraph 115 above). In that regard, he referred to the 2007 Marty Report (see also paragraphs 257-265 below), which had identified N313P as a “rendition plane” and which, according to the flight plans of 22 September 2003 and the Romanian officials, had had as its destination Constanţa and Bucharest.

In further observations filed by the applicant’s representatives on 26 April 2013, it was stated that he had been transferred to a CIA “black site” in Romania on the plane N85VM from Guantánamo Bay to Bucharest on 12 April 2004. It was explained that that fact had emerged from a dossier submitted by Mr Hammarberg, the former Council of Europe’s Commissioner for Human Rights, to the Prosecutor General of Romania (see also paragraphs 334-336 below). The dossier and new information about the applicant’s transfers in CIA custody had not been publicly available earlier.

The above-mentioned dossier produced by Mr Hammarberg states that on 12 April 2004 the applicant was transferred to the CIA “black site” in Romania on the N85VM flight from Guantánamo Bay to Bucharest. It further states that N85VM landed at 21h47m GMT on the night of 12 April 2004 and was assessed to have been bringing in CIA detainee(s) from the US Naval Base, Guantánamo Bay via a technical stopover in Tenerife, with a false – “dummy” – flight plan filed featuring Constanţa instead of its real destination, which was Bucharest (see paragraphs 334-336 below).

The Romanian Government submitted a set of six documents originating from the Romanian Airport Services (“RAS”) at Băneasa – Bucharest City Airport, described as “annex no. 8” to the 2007 Romanian Senate Report (see also paragraph 164 below), which were examined in the course of the Parliamentary inquiry in Romania. They initially asked that that the annex be treated as confidential. At the fact-finding hearing, the Government submitted that they no longer wished the Court to maintain its confidentiality (see paragraph 12 above).

The first document, invoice no. 386 dated 13 April 2004, was issued by the handling agent of the RAS for Richmor Aviation and indicated an amount charged of 1,255.00 euros (EUR) due for ground services (basic handling, landing fee, lighting fee and navigation services) relating to the N85VM landing.

The second document, ground handling note no. 0036904 dated 12 April 2004 indicated the same amount.

The third document was a copy of an Air Routing card issued for Richmor Aviation.

The fourth document, air navigation services sheet no. 906 dated 12 April 2004 included navigation services charges. It indicated that N85VM landed at Băneasa Airport at 21h50m on 12 April 2004 and departed at 22h45m on the same day.

The fifth document was a partly illegible table containing landing fees for several planes, including N85VM.

The sixth document – a control list of navigation records indicated, among other things, the N85VM landing on 12 April 2004 at 21h47m.

In the course of the PowerPoint presentation Mr J.G.S. testified as follows:

“...[T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our investigations have provided evidence that this transfer took place directly from Guantánamo Bay to the ‘black site’ in Bucharest, Romania. Again, the [US] Senate Committee Report, albeit using code names, coloured code names for the sites in question, describes explicitly where particular detainees were at particular times, and in this passage highlighted, in describing the closure of the Guantánamo Bay facility in the face of probable exposure due to a Supreme Court assessment of the legality of their detention, it states that ‘by a date in April 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities’. The use of ‘facilities’ here in the plural is very important, because the principal destination for those held by the CIA at Guantánamo was in fact back to the facility in Morocco from whence they had come. However, as the Senate inquiry made clear, not all of those held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April 2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa, Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of documentary evidence which I am prepared to provide to the Court, and in particular this graphic demonstrates that there were two distinct transfers out of Guantánamo. The first on 27 March 2004 carried detainees from Guantánamo back to Rabat, Morocco. The second of these, which is of our principal interest, transported one or more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania.

I have put together a graphic to illustrate that, once again, the CIA had recourse to its systematic practice of disguised flight planning in respect of this flight. We reached a point in our investigations, Madam President, where evidence of dummy flight planning in fact became a tell-tale sign of rendition or detainee transfer activity on such flights. So it is significant, as I will demonstrate, that this was not a simple circuit. The aircraft embarked from Washington and flew to Guantánamo Bay, whereupon the blue line demonstrates the first part of the detainee transfer from Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the aviation services provider, in this case Air Rutter International from Houston, Texas, filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa Airport, as documentation from the Romanian authorities demonstrates. It is this flight, depicted here with the blue line, that carried Al Nashiri to detention in Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is apparent premise that one or more detainees from the Romanian site, detained prior to April 2004, was at that point taken from Bucharest back to detention in Morocco, after which the aircraft returned to its base at Washington D.C.

We have been able to uncover this and other flights planned through the network of private contractors, thanks to a large amount of documentation filed in court proceedings in civil courts in New York State, whereupon several US aviation service providers, contracted to the CIA, ended up in a financial dispute. The case in question, Sportsflight Inc. against [sic] Richmor Aviation, in fact concerns the CIA’s chief aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a prime aviation contractor known as Sportsflight Air, previously Capital Aviation, which in turn subcontracted its government mandates to a private company called Richmor Aviation, who were the owners and operators of the aircraft N85VM.

I appreciate that this web of corporate relations is quite difficult to understand on its face, but over several years, myself and other investigators have carefully unpicked these relationships to provide the direct link between the tasking of the United States Government on government contracts through the CIA’s rendition group air branch, all the way down to the pilots, crew members and operators of the aircraft in question. It is unambiguously and categorically the case that these are rendition aircraft, operated for the sole purpose of transferring detainees between ‘black sites’ in the CIA’s RDI programme. The flight of N85VM, on the dates in question, belongs in that category.”

As regards the circumstances surrounding the applicant’s transfer from Guantánamo to Romania, Mr J.G.S. testified at the fact-finding hearing as follows:

“The Guantánamo site operated only for a finite period. As I mentioned, it was due to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush, which was likely to expose CIA detainees to the same reporting obligations, but also the same rights, that detainees in other forms of federal custody would enjoy, and so the CIA deliberately took action to remove its detainees from such scrutiny in advance of the Supreme Court ruling. The Senate Committee Report describes this process, based upon cables and other classified material, and states that by April 2004, the date I assert, 12 April 2004, all of those detainees who were held in Guantánamo were moved out.

There were two flights, as I demonstrated, which formed part of this removal process, the first on 27 March 2004, the second on 12 April 2004. But the first of those only went to Rabat, Morocco, and if you recall, the Committee described, based upon its assessment of interrogation schedules, that Mr Nashiri had been to five different sites in that 3-year timeframe, and in order for him to be in five different sites, he, at that moment, could not have gone back to Morocco, because there are not sufficient documented instances of rendition which link the territories in question, Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms Mr Nashiri’s tour of the sites.

The 12th April 2004 site was the sole outward flight linking Guantánamo to Romania. From the report, from the cables regarding Mr Nashiri’s treatment and physical and psychological state, we know that he found himself in Romania in the 3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made upon his state and status in those date frames. In order for him to have been in Romania at Detention Site Black or ‘Britelite’ by that time, he had to be brought to Romania on flight N85VM on 12 April 2004.

It is a process of elimination, but it is also a process of correlation, which very clearly links to documents filed by contractors, corresponds with the international aviation data that we have analysed, corresponds with the tactics of dummy flight planning and disguise, and ultimately is validated in the public record by the Senate Report.”

Mr Black, referring to the applicant’s alleged rendition to Romania testified as follows:

“I am aware of two possible flights that could have taken the applicant Al Nashiri into Romania, that [a flight with the tail number N85VM], is one of them. There is a potential other one that occurred in February 2005. We know for a fact that he was in Romania after February 2005, we know from cables referenced in the Senate Report that he was in Romania in June 2005. There are indications that he was held in Romania before that, in late 2004, which leads me, of the two possibilities, that leads me to prefer the April 2004 flight as being the more likely of the two. In terms of my own research, I would say that there is a small ambiguity on that point, I am not prepared to say that the data I have at my fingertips conclusively demonstrates that he was taken on the April flight in 2004 rather than the February one in 2005. I think the balance of probability does lie in favour of that. However, whichever of the two it is, there is no doubt that he was in Romania by the summer of 2005.”

The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention.

On 15 June 2016 the US authorities disclosed to the public a second, less redacted version of the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007 (for the first, more extensively redacted version see Al Nashiri v. Poland, cited above, §§ 112-113; see also paragraphs 142-143 below). During that hearing the applicant described the treatment to which he had been subjected in CIA custody from his capture in November 2002 to his transfer to Guantánamo in September 2006. The relevant part of that transcript read, as follows:

“From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way.

By hanging, head was up and legs were pointing downwards. I was hung for almost a month. You doing your things basically and you were hung upside down and drowning and hitting at the wall. There are many scars on my head if I shave my head. If I shave my hair the scars will become obvious.

What else do I want to say? I was without clothes. I was sleeping on the floor for about a month. Many things happened. There were doing so many things. What else did they did?

There a box half meter by half meter. It was two meters in height They used to put me inside the box. I was standing in that box for about a week and I couldn’t do anything. My feet were swollen. My nails were about fall off because, I was standing on my feet for long time. They do so many things. So so many things. What else did they did?

That thing lasted for about six month[s]. After that another method of torture began. They use to put something in the food that use to make the body tired. Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn’t reply what I heard, he used to put something in my food. And, after I ate it my body felt like, um, strange. After that he used to come back and talk to me. He told you he put anything in the food. He used to deny that but the camera was behind him. And; I would stand in front of the camera and he used to tell you that because camera was on. He could not deny anything. You have to acknowledge to what we are saying. And, I used to say acknowledge what? They used to ask even political questions. One is the solution to the American problem in Iraq. I’m not the American Foreign Minister to answer these questions. So they used to go and put some stuff in my food. These things happen for more than two years. That thing did not stop until here. So many things happened. I don’t in summary, that’s basically what happened.

Then, the President of the Combatant Status Review Tribunal says:

Alright. Let me ask. So then since the time of capture 2002 until you came to Guantánamo you experienced these types of events?

The applicant responds:

Yes.”

At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Romania:

“I find myself somewhat more limited in my ability to describe specific forms of treatment or interrogation techniques to which Mr Nashiri was subjected in Romania than was the case in respect of Poland. And that is because of the natural evolution of the detention cycles to which CIA detainees were subjected. In pursuit of what was described as ‘live actionable intelligence’, the CIA developed its most stringent, harsh interrogation plans for the earliest days and weeks of a detainee’s period in its detention system. Usually, within one to three days of being apprehended, the chief of base at the ‘black site’ in question would appeal to CIA headquarters for authorisation to practise EITs, so called ‘enhanced interrogation techniques’. This was the case in respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case in respect of Khalid Sheikh Mohammed, this we know because of the Inspector General’s reports. As soon as a detainee was in custody, in Abu Zubaydah’s case, was fit enough to undergo interrogation, that plan would commence. We know that Al Nashiri underwent twelve days of harsh interrogation in Thailand including the waterboard, and we know that upon transfer to Poland, because he was assessed as having withheld information or not been compliant, he was then subjected to an intensive period of harsh interrogation during with multiple, unauthorised techniques were used. Those were documented in the earlier proceedings [Al Nashiri v. Poland]. But there arrives a juncture in a CIA detainee’s detention at which his intelligence value is assessed as lower, at which no further approval or authorisation is sought or granted to practise these enhanced interrogation techniques, and in Al Nashiri’s case we can only say that that point arrived sometime in 2003. Thereafter, it is, in my assessment and according to the documentary record, unlikely that the CIA practised further unauthorised techniques or indeed concerted programmes of enhanced interrogation on Mr Nashiri.

However, that is not to say that he was not subjected to abuse or indeed that the conditions of his confinement did not amount to violations of the European Convention. In respect of those two latter points, I would aver quite clearly that the treatment did amount to violations of the Convention, purely by virtue of the conditions in which he was held and because of the regular interventions made by persons at the ‘black site’ to gratuitously abuse, punitively or otherwise, certain detainees in their custody. I can give you analogous examples of how detainees were treated in Romania. Hassan Ghul, for example: there is a lengthy description of his having endured 59 hours of sleep deprivation, having been shaved and barbered, stripped naked, placed in standing positions with his hands above his head. There are descriptions of how, notwithstanding medical and psychological problems diagnosed by professionals at the scene, he was subjected to further interrogation to the point of enduring hallucinations. I could also cite the example of Janat Gul, a detainee for whom the CIA sought authorisation to use the waterboard in Romania, an unprecedented move, and who was subsequently subjected to an intensive period of enhanced interrogation in the same site at which Al Nashiri was held. I could also cite the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three years and more into the programme, was subjected to the same litany of abusive techniques in interrogating him as Al Nashiri and others had been subjected to in 2002 and 2003. And I could also cite, too, some memoranda produced by the CIA General Counsel’s office in the material period in which Al Nashiri was held in Romania, which described conditions of confinement, sensory deprivation as a matter of routine, denial of religious rights, physical and psychological oppression, sleep deprivation as a matter of course, notwithstanding whether a detainee is subject at that time, or not, to EITs.

So whilst I cannot give the same level of specificity as I was able to present in respect of Poland, I can aver with a high level of certainty that he endured ill-treatment whilst held in Romania because, in my view, every one of those detainees brought to Romania, held incommunicado, indefinitely, with no idea of their whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often beaten in the process, every one of those persons would have a legitimate claim under our European Convention on Human Rights for violation of their personal integrity.”

Mr Black testified as follows:

“The question of precise types of treatment is, I would not say it is my specific expertise. It is clear from the Senate Report and other sources that treatment in Romania included very extreme sleep deprivation, which apparently led some of those who suffered it to have very severe mental and physical problems, and it is clear also that the applicant, Mr Nashiri, in particular when he was in Romania, was experiencing serious, let’s say, psychological problems as a result of the treatment that he had received. But my, and I should say also it is clear that around that time, between 2003 and 2005, it is firmly on the record that there were a range of treatments being applied to these people, that the enhanced interrogation techniques were being applied, I think this has all been quite well documented, but it is not really my topic of expertise, I would not say.”

Citing as a source two CIA cables of 23 May 2004, the 2014 US Senate Committee Report states that “at one point Al Nashiri launched a short-lived hunger strike that resulted in the CIA feeding him rectally” (see also paragraph 158 below).

Referring to an email to Detention Site Black dated 30 October 2004 on the subject “Interrogator Assessments/Request for Endgame Views”, the report states that “an October 2004 psychological assessment of Al Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an “endgame” for the [HVD] program”

The 2014 US Senate Committee Report further refers to the applicant’s detention at Detention Site Black in June and July 2005 as follows:

“In the final years of al-Nashiri’s detention, most of the intelligence requirements for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the DETENTION SITE BLACK chief of Base suspended even these debriefings because it was ‘the very, very rare moment’ that al-Nashiri would recognize a photograph, and because the debriefings often were the ‘catalyst’ for his outbursts.”

It also states, with reference to a cable of 5 July 2005, that in July 2005 CIA Headquarters expressed concern regarding Al Nashiri’s “continued state of depression and uncooperative attitude”. Days later a CIA psychologist assessed that the applicant was on the “verge of a breakdown” (see also paragraph 158 below).

In his initial submissions the applicant submitted that no later than 6 September 2006 the Romanian authorities had assisted the CIA in secretly transferring him from Bucharest to another CIA “black site”.

The experts gave two possible dates for the applicant’s rendition from Romania: 6 October 2005 and 5 November 2005. According to them, the latter date was the final closure of the CIA “black site” on Romania’s territory, prompted by the publication of Dana Priest’s article “CIA Holds Terror Suspects in Secret Prisons” suggesting that such prisons operated in Eastern European countries on 2 November 2005 (see also paragraph 236 below).

In the course of the PowerPoint presentation Mr J.G.S. testified as follows:

“In terms of [the Black Site in Romania’s] closure, it is stated in the [2014 US Senate Committee Report] that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ... dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the report.

It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in The Washington Post, which went into intimate detail of the CIA’s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory.

The question has often been posed to us, Honourable Judges, if there were detainees in Romania, how did they leave? There appeared to be no obvious direct flights out of Romania in the critical period, October, November 2005, to any other detention site we were aware of, and this was often put forward by representatives of the Romanian authorities as a reason for decrying, for rejecting, for refuting the content of our reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports].

We have, however, now ascertained how detainees were removed from Romania, and this occurred in two tranches in the months of October 2005 and, as stated, November 2005. I have chosen to illustrate the first of these transfers, which occurred between 5 and 6 of October 2005, because it provides a further segue into detention operations on the territory of another Council of Europe Member State, in this case Lithuania.

The CIA used two tactics of deceit in order to provide these flights with the maximum degree of cover, in order that they could not and would not be tracked, traced or held to account. The first of those was its conventional dummy flight planning, but the second of those was a novel tactic involving switching of aircraft. This graphic will demonstrate how this was deployed on 5 and 6 October 2005, involving two aircraft, namely N308AB and N787WH. The first of those aircraft is depicted by red lines, the second by blue, on the graphic, the other symbols follow the earlier pattern of drop-off, transfer and stopover points. The two planes arrived in Europe, the first [N308AB] from provenance of Teterboro, New Jersey, the second [N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which would become the staging point for these operations. The first dummy flight plan, filed by the CIA’s aviation services provider, stated a path for N308AB from Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the ‘black site’ in Romania, whereupon it would collect detainees. Those detainees referred to in the Senate Committee Report who were cleared from Romania in these critical months were then taken from Bucharest to Tirana, to the staging point where the other CIA aircraft had been waiting for a day in advance. In this staging point, in an unprecedented manoeuvre, according to our investigations, detainees were transferred from the first aircraft onto the second, together with members of the CIA rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly. Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from Romania to Vilnius, Lithuania, thereby providing a link between two detention sites on European territory. The aircraft then departed in their own respective directions, the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft, N308AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had innovated yet another means, another layer of cover to obstruct proper accounting for the illegal transfer of its detainees, but due to a process which Senator Marty referred to as ‘la dynamique de la vérité’, we have been able, methodically and carefully, to unpick these layers of secrecy and present to this Court what we believe is a truthful and accurate accounting of operations in respect of these ‘black sites’.”

In his further testimony, in response to questions from the Court, Mr J.G.S. added:

“There are two known and documented junctures at which CIA detainees at the ‘black site’ in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post’s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as ‘Violet’ and ‘Orange’: the former, ‘Violet’, in Lithuania, the latter, ‘Orange’, in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States.”

Mr Black testified as follows:

“ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post, the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA ‘black site’ programme was operating only in Lithuania and in Afghanistan.”

The relevant section in the 2014 US Senate Committee Report reads as follows:

“After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded closure of DETENTION SITE BLACK within [two-digit number REDACTED] hours. The CIA transferred the [number REDACTED] remaining CIA detainees out of the facility shortly thereafter.”

According to public Eurocontrol flight data based on, among other things, the flight data entered by the Romanian authorities into the Eurocontrol system, which was referred to by Mr J.G.S and Mr Black, the flight circuit of October 2005 involving planes N308AB and N787WH and the circuit of November 2005 involving planes N1HC and N248AB can be described as follows.

As regards the circuit of 1-7 October 2005, executed by planes N308AB and N787WH:

(a) Eurocontrol data shows N308AB filing a flight plan departing from Teterboro, USA at 13:31 on 4 October 2005 with scheduled arrival time at Bratislava, Slovakia at 22:58 the same day. On the following day it filed a flight plan departing from Bratislava at 19:06 with scheduled arrival time at Mihail Kogălniceanu International Airport, Constanţa, Romania at 20:41. It then filed a plan departing 40 minutes later, at 21:21, from Băneasa Bucharest City Airport. According to the experts, this indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. Leaving Băneasa it was scheduled to arrive in Tirana, Albania at 22:38. It filed its next flight plan from Tirana on 6 October at 01:08, with a scheduled arrival time in Shannon, Ireland, at 04:22 (all times are Zulu (i.e. GMT)).

(b) Eurocontrol data shows that on 5 October 2005 at 00:45 N787WH filed a flight plan departing from Keflavik, Iceland with scheduled arrival in Tirana International Airport on the same day at 05:52. It then filed a flight plan departing Tirana at 23:44 with scheduled arrival at Tallinn, Estonia the following day at 02:26. It then filed a flight plan leaving 30 minutes later, at 02:56, not from Tallinn but from Vilnius International Airport, Lithuania, with scheduled arrival in Oslo at 04:33 (all times are Zulu (GMT)). Documents from Vilnius airport show that the plane landed in Vilnius at 01:54 Zulu / 04:54 local time, however, indicating that the scheduled trip to Tallinn was in fact a false flight plan, and that the plane did not go to Tallinn, but rather directly from Tirana to Vilnius (see also Abu Zubaydah v. Lithuania, no. 46454/11, § 130, 31 May 2018).

As regards the circuit of 5-7 November 2005, executed by planes N1HC and N248AB:

(a) Eurocontrol data shows that N1HC filed a flight plan to leave Harrisburg International Airport, USA at 10:30 on 5 November 2005, with scheduled arrival in Porto, Portugal at 16:58 the same day. It then filed a flight plan to leave Porto at 17:59, with scheduled arrival at Mihail Kogălniceanu International Airport, Constanţa, Romania at 21:45. Its next flight plan shows it leaving Băneasa Bucharest City Airport 20 minutes later, at 22:05, with scheduled arrival at Amman, Jordan that night at 00:21 on 6 November. This, according to the experts, indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. From Jordan it filed a flight plan to depart Amman at 01:20 with arrival at Keflavik scheduled at 08:25.

(b) Eurocontrol data shows that N248AB filed a flight plan to leave Malta International Airport on 5 November 2005 at 21:10 with scheduled arrival in Amman at 23:49. It then filed a flight plan to leave Amman 66 minutes later, at 00:55 on 6 November, with arrival in Kabul scheduled for 05:12. It filed a flight plan to leave Kabul 48 minutes later, at 06:00, with arrival in Athens scheduled at 11:32 the same day.

The findings of the Lithuanian Parliament (Seimas) made in the course of an inquiry concerning the alleged detention facilities in Lithuania in 2010-2011 concerned, among other things, the flight N787WH landing in Vilnius, en route from Tirana, on 6 October 2005 (see paragraph 332 below)

The list of 43 flights operated in 2001-2005 at the airports of Constanţa, Băneasa and Otopeni submitted by the Government (annex no. 11 to the 2007 Romanian Senate Report; see also paragraph 167 below) included that of N1HC, which departed from Băneasa airport on 5 November 2005.

The list of twenty one “suspicious flights”, which was produced by the Government, included N1HC executing a circuit “Harrisburg –București Băneasa-Djibouti-Amman” that departed from Băneasa Airport on 5 November 2005 (see paragraph 327 below).

The invoice (no. 1692) for United States Aviation in respect of N1HC issued by RAS on 6 November 2005 included a handwritten note: “Middletown-Băneasa-Djibouti (?) (Amman?)”

According the 2014 US Senate Committee Report, in “early January 2006” the CIA was holding twenty-six detainees “in its two remaining facilities, Detention Site Violet, in Country [name REDACTED] and Detention Site Orange, in Country [name REDACTED]”.

The applicant, according to the experts, was taken to one of those sites – Detention Site Violet located in Lithuania or Detention Site Orange located in Afghanistan on one of the above-described plane-switching flights circuits of, respectively, 1-7 October 2005 and 5-7 November 2005 (see paragraphs 129-135 above).

The 2014 US Senate Committee Report states that the applicant “was transferred to US military custody on September 5, 2006.”

On 6 September 2006 President Bush publicly acknowledged that fourteen high-value detainees, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantánamo Bay Internment Facility (see also paragraph 60 above).

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

According to a partially redacted transcript of that hearing, the applicant stated that he “[had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him”. He also stated that he had made up stories during the torture in order to get it to stop (see also paragraph 123 above).

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

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

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

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

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

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

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

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

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

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

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

On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011.

On 28 September 2011 the capital charges against the applicant were approved.

The military commission hearing in the applicant’s case began on 17 January 2012. The first two days of the trial were devoted mostly to pretrial motions.

The proceedings against the applicant before the military commission are pending.

According to a statement – “Remarks at Guantánamo Bay” issued by Chief Prosecutor Mark Martins on 17 March 2017, a day before the military commission convened to try Al Nashiri completed a pre-trial session to resolve disputes regarding “outstanding legal and evidentiary issues”. During the session, the Military Judge directed that the military commission would be in session from 31 July to 4 August, from 11 to 29 September and from 6 to 17 November 2017. He also announced that he planned to issue soon a final discovery order as well as a trial order for 2018.

On 22 November 2013 the applicant’s representative produced a psychological evaluation of the applicant by US government psychiatrists, which had been conducted at the request of the US government. It states that Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome.

In the 2014 US Senate Committee Report, in the chapter “CIA Detainees Exhibit Psychological and Behavioral Issues”, it is stated that psychological and behavioural problems experienced by CIA detainees, who had been held in austere conditions and in solitary confinement, had also posed “management challenges” for the CIA.

The section referring to the applicant reads as follows:

“... Abd al-Rahim al-Nashiri’s unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally.

An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an ‘endgame’ for the program.

In July 2005, CIA Headquarters expressed concern regarding al-Nashiri’s ‘continued state of depression and uncooperative attitude’. Days later a CIA psychologist assessed that al-Nashiri was on the ‘verge of a breakdown’.”

The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 26 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan and Detention Site Black was identified as having been located in Romania (see also Abu Zubaydah v. Lithuania, cited above, § 166).

The 2014 US Senate Committee Report refers to “Detention Site Black” in several sections concerning various events.

In chapter entitled “The CIA establishes ‘DETENTION SITE BLACK’ in Country [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to “Detention Site Black” reads as follows:

“[REDACTED] The CIA entered into an agreement with the [REDACTED] in Country [REDACTED] to host a CIA detention facility in [month REDACTED] 2002.

In [month REDACTED] 2003 CIA Headquarters invited the CIA Station in Country [REDACTED] to identify ways to support the [REDACTED] in Country [REDACTED] to ‘demonstrate to [REDACTED] and the highest levels of the [Country [REDACTED] government that we deeply appreciate their cooperation and support’ for the detention program. The Station responded with an $ [amount REDACTED] million ‘wish list’ [REDACTED]; CIA Headquarters provided the Station with $ [amount REDACTED] million more than was requested for the purposes of the [REDACTED] subsidy. CIA detainees were transferred to DETENTION SITE BLACK in Country [REDACTED] in the fall of 2003.

In August 2003, the U.S. ambassador in Country [REDACTED] sought to contact State Department officials to ensure that the State Department was aware of the CIA detention facility and its ‘potential impact on our policy vis-a-vis the Country [REDACTED] government’. The U.S. ambassador was told by the CIA Station that this was not possible, and that no one at the State Department, including the secretary of state, was informed about the CIA detention facility in Country [REDACTED].

Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S. military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country [REDACTED] to seek information on CIA detention standards and interrogation methods. In the fall of 2004, when [REDACTED] U.S. ambassador to Country [REDACTED] sought documents authorizing the program, the CIA again sought the intervention of Deputy Secretary Armitage, who once again made ‘strong remarks’ to the CIA about how he and the secretary of state were ‘cut out of the NSC [National Security Council] clearance/coordination process’ with regard to the CIA program. ...

While it is unclear how the ambassador’s concerns were resolved, he later joined the chief of Station in making a presentation to Country [REDACTED]’s [REDACTED] on the CIA’s Detention and Interrogation Program. The presentation talking points did not describe the CIA’s enhanced interrogation techniques, but represented that ‘[w]ithout the full range of these interrogation measures, we would not have succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other equally resistant HVDs’ The talking points included many of the same inaccurate representations made to U.S. policymakers and others, attributing to CIA detainees critical information on the ‘Karachi Plot’ the ‘Heathrow Plot’. the ‘Second Wave Plot’, and the ‘Guraba Cell’; as well as intelligence related to Issa al-Hindi, Abu Talha al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-Tayyar. ...”

In chapter entitled “CIA Detainees Exhibit Psychological and Behavioural Issues” reference is made to an email from an American authority (name redacted) to “Detention Site Black”, dated 30 October 2004 on the subject: “Interrogator Assessments/Request for Endgame Views”, which concerned Al Nashiri’s psychological assessment (see also paragraph 158 above), which was used by the CIA in the framework of discussions on establishing an “endgame” for the HVD Programme.

Chapter “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing Problem’” refers to the “Detention Site Black” as follows:

“In the fall of 2004, CIA officers began considering ‘end games’ or the final disposition of detainees in CIA custody.

[REDACTED] In 2004, CIA detainees were being held in three countries: at

DETENTION SITE BLACK in Country [REDACTED], at the [REDACTED] facility in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.

On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country [REDACTED] sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that ‘we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-a-vis their interaction with the program, resulting in a ‘decline in the overall quality and level of experience of deployed personnel’, and a decline in ‘level and quality of requirements’. He wrote that because of the length of time most of the CIA detainees had been in detention, ‘[the] detainees have been all but drained of actionable intelligence’, and their remaining value was in providing ‘information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals’.

The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised ‘a host of new challenges’. These challenges included the need to address the ‘natural and progressive effects of long-term solitary confinement on detainees’ and ongoing behavioral problems.”

According to the report, one of the high-value detainees, AbuFaraj al-Libi, was transferred to Detention Site Black on an unspecified (redacted) date in May 2005 and was subjected to EITs starting from 28 May 2005.

The section concerning the closure of Detention Site Black after publication of the Washington Post article (see paragraph 236 below) is rendered in paragraph 133 above.

On 21 December 2005, by virtue of the Decree of Romania’s Senate of 21 December 2005 (published on 27 December 2005) the Romanian Parliament set up the Inquiry Committee for investigating statements regarding the existence of CIA detention facilities or of some flights of planes leased by the CIA on the territory of Romania (Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României) (“the Romanian Senate Inquiry Committee”). It comprised eleven members and was presided over by Ms N. Nicolai. The report of the Romanian Senate Inquiry Committee (“the 2007 Romanian Senate Report”) was published in the Official Monitor on 7 May 2008. The annexes attached to the report remained classified.

The 2007 Romanian Senate Report explained that the committee had been established “following the request of Mr Rene van der Linden, the President of the Council of Europe Parliamentary Assembly (PACE), formulated in the speech held in the assembly of the united chambers of Romania’s Parliament on 24 November 2005, to investigate the accusations published in the international press regarding the detention and illegal transfer of prisoners in some of the member states of the Council of Europe”.

The terms of reference were defined as follows:

“According to Article 1 of the Decree of Romania’s Senate no. 29 of 21 December 2005, the Inquiry Committee was charged with investigating statements regarding the existence of some CIA detention facilities on the territory of Romania or of some flights of some planes leased by CIA, that would have allegedly transported persons accused of having performed terrorist acts”.

The initial deadline for presenting a report by the committee was fixed for 15 February 2006 but, given the complexity of the issues involved, that term was eventually extended until 5 March 2007.

From January 2006 to January 2007 the Romanian Senate Inquiry Committee held periodic meetings, usually on a monthly basis and carried out some fact-finding missions. According to the 2007 Romanian Senate Report, the committee held twenty-one meetings “for documentation review and analysis with the leaders of institutions and specialised structures” and over forty meetings with official delegations and members of the Council of Europe’s inquiry body, other politicians and journalists. It heard over 200 persons and studied over 4,200 pages of documents. Its delegates also made six visits to the airports and military airbases susceptible to have been used for secret detentions and illegal prisoners’ transfers, including Timișoara- Gearmata; Bucharest-Băneasa; Constanţa-Mihail Kogălniceanu; Tulcea-Cataloi and Fetești-military.

Based on the in situ investigations, the Romanian Senate Inquiry Committee found no facility built at the material time (2003-2005) that might have been used as a detention facility, “be it ad hoc”. Also, it concluded that no flight that had passed through Mihail Kogălniceanu airport would raise suspicions of the illegal transport, embarking or disembarking of any passenger.

As regards “suspicious flights” in respect of which Senator Marty asked the Romanian authorities for all available evidence in his letter on 7 November 2006, the findings read, in so far as relevant, as follows:

“Regarding flight N313P of 25 January 2004, the Committee established that that flight landed on the Airport Bucharest-Băneasa for refuelling and ground services. No passenger embarked or disembarked the plane. There is all evidence that shows beyond this fact, but also the purpose of the stopover. ...

Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the information provided by the Romanian Civil Aeronautical Authority, according to which, on 25 January 2004, its destination airport was Timişoara, not Bucharest - Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he verified this fact. ...

We would like to mention that the initial information provided by the Romanian Civil Aeronautical Authority (RCAA), regarding the landing on the International Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that RCAA had access only to the flight plan sent by the operator of the aircraft. The flight plan was modified by the operator in the air, requesting the stop on the International Airport Bucharest-Băneasa.

At that date, according to the Romanian legislation, the operators who performed private flights in the national airspace were not under any obligation to request from request from RCAA any overflight authorisation, since it was sufficient to submit the flight plan to the traffic body. ...

For N313P of 22-23 September 2003 (classified appendix no. 4):

- copy of the extract of the navigation chart ROMATSA associated with the Airport Băneasa, in which the real route of the flight is indicated;

- copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight N313P, issued by the handling agent of the Romanian Airport Services.

Flight N478GS of 6 December 2004, which had an accident while landing at the Airport Bucharest-Băneasa, is suspected of being involved in a circuit that would have transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick Marty in April 2006.

The event had the following development: On 6 December 2004, at 1:29 PM, the aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was performing a charter flight on the route Bagram/Afganistan-Bucharest/Băneasa, landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07, with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded the available speed for landing ... and the delayed threshold of the runway, in an area of the runway where the airport was carrying on maintenance works ... .The aircraft rolled with the main left jamb on an unpaved portion with a depth of approximately 15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of fuel from the left wing. The aircraft experienced damages on the left jamb of the main landing train and on the fuel tank in the left plan(classified appendix no. 5). ...

Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that the Romanian Civil Aeronautical Authority indicates the route Prague-Constanţa -Băneasa-Amman. In reality, the flight took place on the route Prague-Bucharest Băneasa-Amman, according to invoice no. 3.314 of 25 October 2003, issued by ROMATSA (classified appendix no. 6).

Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport Mihail Kogălniceanu, but in Airport Bucharest–Băneasa (classified appendices no. 7 and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10).

The appendix to Mr. Dick Marty’s letter of March 31, 2006 requests details regarding 43 flights. The Inquiry Committee presents them in classified appendix no. 11.”

The final conclusions of the 2007 Romanian Senate Report were formulated as follows:

To the question whether there is or there were American secret detention sites in Romania, the answer is negative.

To the question whether in Romania, during the investigated period, there exist or existed facilities for detaining prisoners, other than penitentiary ones (real, secret, ad-hoc, buildings that were used for this purpose on an improvised basis, potentially in the proximity of airports Timişoara, Bucharest – Henri Coanda or Băneasa, and Constanţa, the Inquiry Committee’s answer is negative.

To the question whether there are or there were detainees with or without records held in the Romanian penitentiary system, who could have been assimilated with prisoners, the Inquiry Committee’s answer is negative.

To the question whether there could have been clefts in the complete control system of the civil or military traffic or whether some flights could have passed inadvertently without being monitored or unrecorded or if in their cases the ground procedures stipulated in the international conventions could have not been applied, the Inquiry Committee’s answer is negative.

To the question whether it could have been possible that certain Romanian institutions in Romania would have participated knowingly or by omission or negligence in operations of illegal transport of detainees through the airspace or airports in Romania, the Inquiry Committee’s answer is negative.

To the question whether civil American flights or other states’ civil flights could have transported, dropped, or picked up persons that could be assimilated to the detainees on the Romanian territory or under the responsibility of Romanian authorities, in compliance with international regulations, the Inquiry Committee’s answer is negative.

To the question whether there existed an in-depth parliamentary investigation to determine the media allegations regarding the existence of some detention facilities or of some flights with illegal prisoners in Romania, the Investigation Committee’s answer is positive.

To the question whether the purpose of the stopovers in Romania of the flights referred to in chapter 5, the Inquiry Committee has solid grounds to reply that they had nothing to do with potential illegal transports of prisoners on the territory of Romania.”

On 13 October 2008, in reply to a letter by APADOR-CH concerning the purpose of the flights mentioned by the report cited above, the President of the Romanian Senate stated:

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

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

On 29 May 2012 the applicant’s lawyer filed a criminal complaint (plângere penală) on his behalf with the Prosecutor General, asking for an investigation into circumstances surrounding the applicant’s rendition, secret detention and ill-treatment in Romania to be opened. It was submitted that the Romanian authorities had allowed the CIA to subject the applicant to torture and unlawful, incommunicado detention on Romanian territory and to transfer him out of the country despite the risk of his facing further torture, unacknowledged detention and death penalty. He relied on Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 6 and maintained that the conduct of the Romanian authorities constituted offences of, inter alia, aiding and abetting murder, torture and ill-treatment as defined in the Romanian Criminal Code.

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

Some time afterwards, on an unspecified date, the prosecution authorities opened an investigation concerning the applicant’s allegations.

At the Court’s request, the Government submitted various materials concerning the investigation asking, under Rule 33 § 2 of the Rules of Court, for public access to those documents to be restricted, in the interests of national security and also on the grounds of secrecy of the investigation (see also paragraph 12 above). Those materials included transcripts of witness evidence obtained in the investigation. They were produced in the Romanian language, with an English translation. The English version is rendered in paragraphs 299-325 below.

All these documents were available to the Court and the applicant in full, unredacted versions. The following description of the course of the investigation is based on a summary (redacted version) of annexes containing documents from the investigation file produced by the Government. That summary was prepared by the Government in the English language.

On 3 December 2012 the investigating prosecutor analysed the applicant’s complaint and its context, including laws and arrangements regarding bilateral agreements between Romania and the United States and information in the public domain concerning the applicant’s allegations. Also, an initial investigation plan was prepared on that date. The plan included a list of requests for information, clarifications, documents, audio and video recordings and flight data to be addressed to various domestic authorities – among others, the Civil Aviation Authority, Air Traffic Services Administration, Otopeni, Kogălniceanu and Băneasa airports, the Government and the relevant ministries.

On 27 December 2012 the Prosecutor’s Office attached to the Court of Cassation (Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție – “PICCJ”) asked the RCAA to provide, in connection with the investigation the following information concerning certain flights mentioned in an annex to the request (the annex has not been produced):

(a) any data, information, documents held with regard to the air traffic control in respect of the flights in question;

(b) any audio or video recordings concerning the flights in question (for example: air traffic control or directing);

(c) names of individuals who had carried out specific tasks on the dates when the flights in question had allegedly taken place;

(d) names of individuals directly involved in facilitating or operating those flights.

On 12 January 2013 the RCAA informed the PICCJ that, according to the relevant legislation in force at the relevant time (2003-2005), namely Government Decision no. 1172/2003, they had data concerning only a few flights – which they included in an annex (the annex has not been produced).

The RCAA stated that the available data did not clearly show that these flights had taken place and that they did not have any documents which attested that the flights had actually taken place. According to the legislation in force at the material time, information in the RCAA’s possession showed only an intention to operate the flights, which had been planned and notified to them.

It further stated that Government Decision no. 1172/2003 had eliminated the need for the RCAA to approve flights which transited the national airspace with no commercial stop (and did not carry troops, military equipment, weapons, munitions, explosives, radioactive or other dangerous materials or did not fall in the category of technical flights) and, also, internal and international flights with civil aircraft registered abroad, landing and taking off from the Romanian territory, which were included in the category of civil air operations of general aviation. These flights were considered authorised if a flight plan on a published ATS (Air Traffic Service) route was submitted and the aircraft used were insured for damage caused to third parties on the ground.

As regards audio or video recordings and names of any individuals involved, the RCAA stated that they did not have any such information.

In addition, the Government produced copies of the following prosecutor’s letters requesting information or documents from various authorities:

(1) letter of 27 December 2012 addressed to the Romanian Government, asking for the classified annexes to the 2007 Romanian Senate Report;

(2) letters of 27 December 2012 addressed to Timişoara Airport, Constanţa Mihail Kogălniceanu Airport and Bucharest Băneasa Airport, requesting information about the alleged suspicious flights, including audio or video recordings, and about the airport personnel who had worked on the relevant dates;

(3) letter of 3 March 2013 addressed to the Ministry of Transport and Infrastructure, requesting it to the transmit the National Programme of Aeronautical Security to the prosecutor;

(4) letters of 18 March 2013 addressed to the Civil Aviation Directorate and the Bucharest Airports National Company requesting information about flights N313P, N85VM, N379P, N478GS, N228KA, N308AB, N789DK, N227SV, N787WH, N1HC, N2189M and N860JB, including general flight data from 2003-2006, types and purposes of flights, type of journey, flight route, flight operator, flight organiser, aircraft type, aircraft capacity, aircraft registration, documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations, specific requests for each flight and handling operator;

(5) letter of 24 April 2013 addressed to the Bucharest Airports National Company, requesting information about applications for authorisation of access of persons and vehicles to the airplanes, the relevant records, information about the security personnel and the handling agents who had worked on the relevant dates at Bucharest Băneasa Airport and at Constanţa Mihail Kogălniceanu Airport;

(6) letter of 24 April 2013 addressed to the General Inspectorate of the Border Police, requesting information about the personnel who had worked on the relevant dates and any persons who entered, exited or transited the national territory on those dates through Bucharest Băneasa Airport and Constanţa Mihail Kogălniceanu Airport;

(7) letter of 29 April 2013 addressed to the Romanian Airport Services (“RAS”), requesting information about the personnel who had worked on the relevant dates and the handling operations performed.

On an unspecified date, in response to the prosecutor’s request, the Ministry of Transport-Civil Aviation Directorate provided the following documents:

- flight plans of N312ME on 24 April 2003, N175A on 5 May 2003, N58AS on 16 June 2003, N313P on 22 September 2003, N313P on 25 January 2004 and N227SV on 1 October 2004;

- control lists of the navigation records;

- tables containing handling fees;

- invoices issued by the RAS;

- ground handling charge notes;

- air navigation services sheets;

- address no. 6 293 of 4 November 2006 issued by Timișoara Airport informing that, after checking their records, there was no evidence of the landing of the flight N313P operated by Business Jet Solutions. It was also mentioned that the said aircraft had not carried out any flights on Traian Vuia Airport – Timișoara until 14 November 2006.

- list of flight plans;

- letter no. 239 of 25 March 2013 from the Bucharest Airports National Company, transmitting all relevant information identified in their archives and informing the prosecution that from 2004 to 2005 in Bucharest Băneasa Airport the RAS was in charge of the handling services. The letter also mentioned that the flights concerned had not been identified as having operated at Henri Coandă Airport.

- letter no. 2183 of 22 March 2013 from Constanţa Mihail Kogălniceanu Airport confirming, among other things, that N308AB had operated in that airport and that it had landed on 25 August 2004 at 00:03, and departed on 25 August 2004 at 01:33;

- letter no. 3461 of 13 June 2006 from Constanţa Mihail Kogălniceanu Airport, confirming that the aircraft Lockheed L382 registered as N2189M had operated at that airport, landing on 13 June 2003 at 09:57, departing on 14 June 2003 at 08:31 and that the aircraft Gulfstream IV registered as N227SV had operated in the airport, landing on 1 October 2004 at 20:39 and departing at 21:26 on the same date.

On 26 April 2013 the Bucharest Airports National Company replied to the prosecutor’s request of 18 March 2013. The company stated that it did not have information about general flight data concerning the indicated aircraft in the period 2003-2006, the purpose of the flights, type of journey, flight organiser, aircraft capacity, any documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations or information about handling requests. It informed the prosecutor that the flight plans had been received through the AFTN terminal and had not been subject to archiving and that the RAS had been the handling operator in 2003-2006 at Bucharest Băneasa Airport. A table containing information about the relevant flights was transmitted to the prosecutor.

On 21 May 2013 the Bucharest Airports National Company replied to the prosecutor’s request of 24 April 2013. The company transmitted the requested information about the applications for access authorisation to the planes and the relevant records. It also explained to the prosecutor that since the retention periods for the requested documents were from three to five years, it was impossible for it to produce any additional information about the requests for authorisations and the access records. The company also produced information concerning the security personnel who had worked on the relevant dates.

On 20 May 2013 the General Inspectorate of the Border Police replied to the prosecutor’s request of 24 April 2013. It forwarded a list containing the names, personal data and the present workplace of the personnel who had worked on the relevant dates. It also informed the prosecutor that flight logs had automatically been erased after five years and that, as a consequence, they could not submit the requested information about the persons who had entered, exited or transited the national territory on those dates at Bucharest Băneasa Airport.

On 11 July 2013 the General Inspectorate of the Border Police supplied information concerning the personnel who had worked at Bucharest Băneasa Airport on 22 September 2003 and their personal data.

On 13 June 2013 the RAS replied to the prosecutor’s request of 29 April 2013. The RAS informed the prosecutor about the personnel who had worked on the relevant dates and transmitted several tables containing handling fees. They also stated that information about the handling services performed had been retained only for three years.

In the meantime, on 24 April 2013, the prosecutor asked the Ministry of National Defence (Ministerul Apărării Naționale) to produce, on an urgent basis, the following information concerning the period of 2003-2006:

(a) military flights carried out by US military aircraft or civilian flights carried out by the US air companies, which concerned “the transfer of individuals within the framework of the USA Special Rendition Program” and which had had as a point of transfer, transit or destination “airports on Romania’s territory”;

(b) existence or non-existence, on Romania’s territory, of alleged detention facilities set up at the US authorities’ or the US forces’ request and their possible location, including names of legal persons hosting them;

(c) detention, interrogation, and subsequent transfer of individuals in the US forces’ or the US authorities’ custody from the alleged detention facilities to other locations;

d) names of persons who had been subjected to such treatment.

On 24 May 2013 the Ministry of National Defence replied that the requested materials were part of documents sent to the Romanian Senate Inquiry Committee by a note of 31 March 2006, which was classified as “confidential information”. The Ministry stated that they did not have a copy of those documents, that the documents had been sent to the committee in a single copy (exemplar unic) and that they had not yet been returned to them. Moreover, the provision of information concerning civil aircraft which had operated in the Romanian airspace and in the Romanian international civilian airports fell within the competence and responsibility of the relevant departments attached to the Ministry of Transport.

The Ministry further stated that, by their letter of 9 May 2008, sent to M. Constantinescu, a State councillor attached to the Prime-Minister’s office, they had agreed that documents classified “confidential information” be sent to the European Commission.

Moreover, the Air Force General Staff (Statul Major al Forțelor Aeriene) had stated that it had not had any records of flights operating in the airspace or in the military airports between 2003 and 2006 and transferring individuals in the framework of the US rendition programme; moreover, the representatives of the US authorities had not had access to buildings or air facilities belonging to air bases subordinate to the Air Force or exclusive access to certain areas.

Lastly, the Ministry stated that the General Information Agency of the Defence (Direcția Generală de Informații a Apărării) had no information about the existence of secret US bases in Romania, about individuals allegedly detained illegally in Romanian prisons, their interrogation or transport to and from Romania by unmonitored or unauthorised flights.

On 24 January 2014 the PICCJ asked the Service for International Judicial Cooperation, Programs and International Relations to forward a request for legal assistance (including 4 annexes) to the relevant US judicial authorities. In the letter of request, the prosecutor asked the US authorities to provide, in connection with the criminal investigation, information concerning, among other things, the period and circumstances of Mr AlNashiri’s arrest and detention, the proceedings against him instituted by the US authorities; whether Mr Al-Nashiri had ever been brought to Romania in the context of his detention imposed by the US authorities under the CIA rendition programme and whether Romania had potentially been involved in that programme. The prosecutor also asked for the date of his arrival on Romanian territory, the means of transport used, the place of his detention on Romanian territory; the date of his departure from Romania, the means of transport used and the relevant documents and whether the Romanian authorities had been aware of his stay in the country.

On an unspecified date in March 2014 the US Department of Justice replied to the letter of request, stating that the US authorities were not able to provide the information requested.

In the meantime, on 27 February 2014, following the entry into force of the new Romanian Criminal Code and Code of Criminal Procedure (see also paragraph 196 below), the prosecutor had re-analysed the applicant’s criminal complaint in the light of the new legislation and decided that the investigation should also include crimes of unlawful deprivation of liberty and torture.

In the course of the investigation, in 2013 and 2015, the prosecutor took evidence from witnesses, including some high-office holders. It also heard other officials, the Border Police officers and the airport staff, including the security personnel. The Government produced transcripts of evidence given by certain witnesses (see paragraphs 298-325 below).

The investigation, apparently still directed against persons unknown, is pending.

As noted above in respect of the Government’s arguments as to Romania’s lack of jurisdiction and responsibility under the Convention, they denied on all accounts the applicant’s allegations as being unsupported by any evidence and, consequently, having no factual basis. They also challenged the credibility of most part of the evidence gathered in the case and denied Romania’s knowledge of, and complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 395-402 above).

The Government’s conclusions on the facts and evidence were as follows.

First of all, the Government maintained that there had been no evidence demonstrating that a CIA secret detention facility had ever existed in Romania. They maintained that all the applicant’s allegations to that effect were based on inconsistent and contradictory speculations.

The sources relied on by the applicant had given contradictory indications regarding the period during which a “secret” detention facility had allegedly operated in Romania. The 2007 Marty Report affirmed that that facility had been opened in 2003 and had become highly important in 2004. It mentioned that it had been closed in November or December 2005 following the Washington Post’s revelations. This contradicted the media sources indicating that the “secret prison” had been closed in the first part of 2006.

According to the article published in The Independent on 8 December 2011, secret detention centres in Romania had been closed by May 2006. Reprieve had taken an approach differing from that of ABC News, stating that the detainees had been moved out of identified European “secret” locations prior to Secretary of State Condoleezza Rice’s visit to Romania on 5 December 2005. On the other hand, the Council of Europe’s Commissioner for Human Rights, in his dossier, had described the “lifecycle” of the site as a “period of at least one year, beginning with its opening on 22 September 2003”.

Accordingly, the reliability and veracity of information concerning the period during which the alleged “secret” detention site had operated was extremely doubtful.

As regards the location of the alleged CIA detention facility in Romania, at first there had been suppositions that it might have been located near Timișoara Airport, Mihail Kogălniceanu Airport or Băneasa Airport. These locations had been mentioned in succession, each for several years.

The sources cited by the applicant had changed their assumptions each time it had been established that no “secret” detention facility had ever existed in the indicated place. Thus, a new location had subsequently been discovered.

In 2007 the Romanian Senate, following on-site inspections of the locations and after hearing witnesses, had established in its report that there had been no “secret” detention site near Mihail Kogălniceanu Airport in Constanţa, including the military airbase. Despite that fact, in 2011 some journalists had come up with another hypothesis, indicating the basement of the building used by the ORNISS, a public institution, as a secret prison. To justify their speculations, they had not, however, supplied any solid evidence, or even any credible indications.

In 2007 Senator Marty had seemed convinced, quoting “reliable sources” within the CIA, that a secure area for the CIA transfers and detentions had been created near Mihail Kogălniceanu Airport. In 2009, the New York Times had quoted “officials” as saying that “one jail was a renovated building on a busy street in Bucharest”. In 2011, other “reliable sources” indicated the ORNISS building – which, the Government added, was located in a residential area and not on a busy street – as the location of the secret CIA detention site in Bucharest.

Lastly, in the pending criminal investigation there had so far emerged no evidence that any location in Romania or, especially, in Bucharest as suggested by the applicant’s sources, could have been used by the CIA as a secret prison. In contrast, the prosecution had obtained a statement from an official working for the ORNISS – which had been produced before the Court – confirming that their building could never be, and had never been, used as a detention facility.

The Government next argued that the applicant’s account regarding the dates, circumstances and period of his alleged detention in Romania was inconsistent and therefore unreliable.

In his application, the applicant had stated that he had been arrested in 2002 in Dubai. Then he had been held in Afghanistan and Thailand and moved to Poland on 5 December 2002. On 6 June 2003 he had been moved from Poland to Rabat, Morocco and, subsequently, on 22 September 2003 to Guantánamo Bay where he had been detained until 2004. On 27 March 2004 he had been transferred to Morocco and afterwards, to Romania. In 2006, the applicant had again been moved to Guantánamo Bay. Finally, he alleged that he had been “secretly” detained on Romanian territory from 6 June 2003 until 6 September 2006.

Other sources advanced the idea that the applicant had been transferred to Romania in September 2003 but then Reprieve had indicated 12 April 2004 as the date of his transfer to Romania. According to the 2007 Marty Report, the applicant had been brought to the CIA ”black site” in Bucharest on the flight N313P on 23 September 2003. Mr Hammarberg, for his part, had maintained that the opening of the CIA prison code-named “Bright Light” and the start of the CIA operations at the Romanian “black site” had been marked by the N313P flight on the night of 22 September 2003. However, in his opinion, the applicant had been transferred to Romania on the N85VM flight directly from Guantánamo to Bucharest on 12 April 2004.

The Government emphasised that the applicant had indicated no precise date of the flight on which he had allegedly been transferred out of Romania. He only mentioned that he had remained in Romania until around 6 September 2006, when he had been moved to Guantánamo. Nor had the experts heard at the fact-finding hearing been able to give a precise date for his transfer out of Romania.

It was therefore clear that there was no conclusive evidence in support of any of the above versions of the possible dates, circumstances or period of the applicant’s alleged detention in Romania.

In the Government’s opinion, there was a particular circuit of information concerning the alleged existence on Romanian territory of “secret” detention facilities. To begin with, mass media had launched accusations against certain States. Later on, this information had been reiterated as genuine by non-governmental organisations protecting human rights. These organisations had presented as evidence data extracted from records, invoices, and flight plans of planes allegedly used for transferring detainees. At the same time, these organisations had deliberately ignored the verifications performed by some European countries regarding the flights allegedly connected to the rendition programme. As a consequence, the information contained in official documents was not based on strong evidence, but on the sum of the data given by the mass media based on nonverifiable sources.

The Government contested the credibility of sources relied on by Senator Marty in his reports of 2006 and 2007. They said that the Marty Reports included many inconsistencies and contradictions. For instance, even though the reports had stated that the materials analysed, i.e. satellite photographs, aircraft movements and witness accounts, had not constituted evidence in the formal sense of the term, the authors had nevertheless found that these elements had been sufficiently serious to assume that a CIA secret detention facility existed in Romania. In the Government’s opinion, Senator Marty had displayed reluctance to reveal his alleged sources of evidence and protected them under the plea of a strict policy of confidentiality. Statements given by anonymous witnesses were not challengeable and this impeded the Government in properly contesting their reliability and defending themselves against the accusations made in the Marty Reports.

Referring to the 2007 Marty Report, the Government saw inconsistencies in many respects. For instance, it was mentioned that the evidence had been obtained through alleged discussions with “well-placed persons from the Government and the intelligence services”. It was also stated that information had been classified by the Americans into “tiny pieces of information” in order to prevent any single foreign official from seeing a “big picture”. But it was further said that only the highly placed officials had been aware of the HVD Programme. In these circumstances, those “well-placed persons” had been in no position to offer any information.

The 2007 Marty Report spoke of the alleged “operating agreements” between the CIA and Romania to hold detainees. However, in the next paragraph Senator Marty had admitted that he had not seen the text of any such agreement.

Furthermore, statements of Romanian politicians had been taken out of context to support the report’s erroneous conclusions. Even a declaration of the Romanian President had been distorted into a “formal approval” of the agreement for the cooperation in the HVD Programme.

In sum, the 2007 Marty Report’s categorical conclusion that it “[had been] finally established that secret detention centres [had] existed for some years in Romania” seemed to have gone beyond the scant indications on which it had been based.

As regards Mr Hammarberg’s findings of 2009-2012, in particular those referred to in his affidavit and included in the dossier prepared for the Romanian Prosecutor General, the Government pointed out that they were – like Senator Marty’s conclusions – based on newspaper articles and sources that could not be verified. They were accordingly no more than unsubstantiated allegations. Also, in the same fashion as other experts before the Court, Mr Hammarberg had based his theories on selective materials, without analysing the existing contradictions. For instance, he had found support for his assertions as to the alleged use of the ORNISS building by the CIA in the fact that in Poland a State facility had hosted a secret detention site. This was concluded without having regard to obvious differences between a remote location and a building used on a daily basis by Government officials in a European capital.

Referring to Reprieve’s research and findings, the Government said that this non-governmental organisation represented the interests of some of the detainees held in Guantánamo and carried out a humanitarian project concerning persons who had been subjected to extraordinary rendition in the HVD Programme. Reprieve’s current case work involved representing fifteen prisoners from Guantánamo, assisting over seventy prisoners facing the death penalty around the world and conducting ongoing investigations into the rendition and the secret detention of “ghost prisoners” in the so-called “war on terror”. In these circumstances, Reprieve could not objectively state the facts in their documents and respective articles.

Lastly, the Government pointed out that the reliability of the CIA sources cited by the experts and various inquiries or media reports was open to doubt because even the 2014 US Senate Committee Report concluded that the CIA had leaked inaccurate information regarding the operation of the HVD Programme.

The Government did not deny that several – allegedly “suspicious” – planes had landed at and taken off from Romanian airports; these flights had at least partly been documented by the 2007 Romanian Senate Report. Also, publicly available evidence confirmed their stopovers on Romanian soil. However, the impugned flights had been of a private and non-commercial nature and had been treated accordingly. In all cases invoices, air navigation service sheets or ground handling charge notes had been issued for all the services provided. The flights had been included in the control lists of the navigation records. The declassified annexes to the 2007 Romanian Senate Report supported the conclusion that the purpose of the “N” flights’ stops at Băneasa Airport had been mainly technical in nature.

For instance, as regards the alleged “rendition flight” N85VM of 12 April 2004, the available documents attested that the flight had been recorded in the table containing handling fees and in the control list of navigation records, that an invoice had been issued and that the payment had been made by card; a copy of the air routing card having been attached to the relevant documents.

Moreover, several witnesses who had worked in Băneasa Airport at the material time and who had made statements in the investigation had identified these flights as having had a technical stop for refuelling at the airport. The vast majority of the witnesses had stated that the “N” flights had been serviced by a civil handling agent as any normal flight. Even the witnesses who had noted aspects that would suggest that the US flights had gone through a different procedure had completed their declarations by stating that they had not seen any persons disembarking from these aircraft. It should be stressed that not all the witnesses had serviced the same flights and that, therefore, their declarations should not be seen as contradictory.

In contrast to the circumstances surrounding the CIA planes’ landings as established by the Court in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights. As the documents in the investigation file showed, all the “N” flights had gone through the standard procedure. The procedure, as described in the witnesses’ statements, had been entirely different from what had happened in Szymany in Poland. No foreign vehicles had been seen entering the premises of Băneasa Airport, there had been no military intervention in order to secure the airport perimeter and, most certainly, US officials had not assumed control of the airport on the dates in question. Nor had any HVDs been seen entering the country, as witnesses quoted in the 2007 Marty Report had stated with regard to the aircraft landings in Szymany.

As regards the importance attached by the international inquiries, media and experts heard by the Court to changes of flight plans, in the Government’s view this by itself could not suggest any involvement of the State in the applicant’s detention and ill-treatment.

The Government did not deny that the initial flight plans for the N313P flight on 22 September 2003 and the N85VM flight on 12 April 2004 indicating Constanţa as their destination had been changed and the planes had eventually landed at Băneasa Airport in Bucharest. Yet this could not be a proof of any consistent practice of the so-called “dummy” flight planning referred to in the Marty 2006 and 2007 Reports and the findings of the Council of Europe’s Commissioner for Human Rights.

In accordance with the relevant domestic and international regulations, every flight must have a flight plan, except for emergency issues. Each flight plan must indicate, in addition to the plane’s destination, an alternative destination. The flight plans had been established by the aircraft’s operators. The only potential involvement of the authorities had been limited to their assistance in transmitting the flight plan to the entity managing the integrated initial flight plan processing system. The decision to use the alternative destination or a change in flight plan had been a unilateral action by the flight operator. The acceptance of these changes in the flight plans was not indicative of any complicity of the Romanian authorities since such acceptance had in fact been automatic.

Similarly, the alleged STS/STATE indicators for the impugned flights could not be considered meaningful, even though various reports had emphasised their exceptional relevance. According to the applicable rules, that indicator should not automatically qualify for an exemption from any relevant flow regulations. Even Mr J.G.S. they added, although repeatedly asked, could not indicate any special privileges that the STS/STATE designation would entail.

In the Government’s submission, the allegations regarding Romanian’s complicity in the HVD Programme, in particular by means of “secret cooperation agreements” were completely baseless. No such agreements existed.

In that context, the Government referred to the Romanian high-office holders’ statements, in particular those made by former President of Romania, Ion Iliescu and his former security adviser, Ioan Talpeş in Der Spiegel in 2014 and 2015. Both of them had said that specific agreements had been concluded with the American authorities after 11 September 2001, including the Romanian support at the level of intelligence services – which had actually been very fruitful. This did not mean cooperation in running a secret prison. Furthermore, in the course of the criminal investigation their initially ambiguous statements had later been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania.

Nor could it be said that the Romanian authorities had otherwise agreed – explicitly or implicitly – to the running of a secret detention facility by the CIA in Romania and that they had made available to them premises for that purpose. These were simply groundless assumptions unsupported by any evidence.

Referring again to the statements of Mr Iliescu and Mr Talpeş statements in Der Spiegel, the Government stressed that they had both clearly confirmed that they had had no knowledge of any CIA-run detention facility on Romanian territory.

No evidence had been produced to show the slightest degree of knowledge on the part of the Romanian authorities as to the alleged hidden purpose of the flights landing at and taking off from Romanian airports.

As attested by Mr J.G.S. at the fact-finding hearing, only at the beginning of November 2005 had there emerged the first information about the alleged existence in some “Eastern European countries” of secret detention facilities designated for suspected terrorists and run by the CIA. Before that time the only information available had concerned the detention facilities in Guantánamo Bay, Afghanistan, Egypt or Jordan and a specific case concerning the surrender of six Algerian men by Bosnian Federal Police into US custody. While information on the setting-up of military commissions for trying persons accused of terrorist acts had been in the public domain, the identities of those persons had been unknown. Nor had it been known what the US authorities’ decision would be as to which of them would actually be tried before military commissions rather than before federal courts.

In sum, at the relevant time, from 2003 to 2005, there had been no information that would have allowed the European States to suspect that some of the US flights that had landed in Europe had been used for the transfer of prisoners.

The applicant maintained that the international inquiries, the CIA declassified documents, the 2014 US Senate Committee Report, other abundant materials compiling most recent research on the operation of the HVD Programme and expert testimony obtained by the Court provided a wealth of compelling evidence supporting his allegations and rejecting the Government’s arguments as utterly untenable.

In his view, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison in 2003-2005 and that he had been detained in that prison.

The 2014 US Senate Committee Report and other documentary exhibits before the Court, as well as cogent and credible expert testimony confirmed that the CIA detention site code-named “Bright Light” or “Detention Site Black” had been located in Romania. The fact that a CIA secret prison had been located in Romania had already been confirmed in the 2007 Marty Report. In the Al Nashiri v. Poland judgment the Court had quoted verbatim from the expert testimony of Senator Marty and Mr J.G.S. stating that there had been a secret CIA detention site in Bucharest.

As regards evidence that had emerged after the above judgment, the applicant attached particular importance to the 2014 US Senate Committee Report, adding that it fully confirmed the Court’s factual findings in Al Nashiri v. Poland, including those based on expert testimony and documentary evidence.

Although the report did not refer to Romania by name, it was established that publicly available information, when cross-referenced with references to Detention Site Black confirmed that this site was “Bright Light”, a secret CIA prison that had operated in Bucharest in 2003-2005. For example, the 2014 US Senate Committee Report stated that detainees had begun arriving at Detention Site Black “in the fall of 2003”. It also stated that after publication on 2 November 2005 of the Washington Post article by Dana Priest disclosing that Eastern European countries had hosted CIA “black sites”, the country concerned had demanded the closure of Detention Site Black within hours and that the CIA had transferred the remaining CIA detainees out of the facility shortly thereafter.

Furthermore, the 2015 LIBE Briefing stated that it had been established beyond reasonable doubt that the CIA had used a facility in Romania to hold prisoners, that the first of them had been transferred to this facility on 22 September 2003 and that the last ones had been transferred out of the facility in November 2005.

Lastly, the applicant relied on expert testimony at the fact-finding hearing. Senator Marty had stated that there had been no shadow of doubt that Romania had participated in the CIA programme. Mr J.G.S. had testified that with the exception of the “black site” in Afghanistan, the Romanian “black site” had operated for the longest period and held more detainees than any other CIA “black site”. Mr J.G.S. and Mr Black had confirmed that the applicant had been secretly detained in Romania. They had also confirmed that the wealth of details about “Detention Site Black” in the 2014 US Senate Committee Report all corresponded to details about the Bucharest prison that the CIA code-named “Bright Light”, where the applicant had been detained. As such, the report by itself, offered by no less than the United States’ own Senate Intelligence Committee, based on exhaustive review of US Government documents, rendered untenable the Romanian Government’s claim that there was no evidence of a CIA prison on Romanian territory.

In response to the Government’s arguments (see paragraphs 426429 above), the applicant said that contrary to their assertions the application had not stated that he had been detained in Romania for the entire period between 6 June 2003 and 6 September 2006. Rather, it stated that he had been detained in Romania for some time during that period. Moreover, after the subsequent disclosure of the dossier submitted by Thomas Hammarberg, the precise date on which the applicant was transferred to a CIA “black site” in Romania had become clear – it had been 12 April 2004, on flight N85VM from Guantánamo Bay to Bucharest.

The applicant further emphasised that, as regards the location of the secret prison, it had become known only on 8 December 2011 when a news report had identified for the first time the precise location of the CIA prison in Romania, while at the same time confirming the applicant’s detention there, and providing details of the ill-treatment of detainees. The report had cited US intelligence officials familiar with the location and inner working of the prison.

The applicant maintained that it had been established beyond reasonable doubt that planes associated with the CIA rendition operations had landed and taken off from Romania at the material time. The annex to the 2007 Romanian Senate Report listed forty-three flights that had been considered suspicious by the Romanian authorities.

The Fava Report had “[e]xpresse[d] serious concern about the 21 stopovers made by CIA-operated aircraft at Romanian airports” which on many occasions had come from or had been bound for countries linked with extraordinary rendition circuits and the transfer of detainees. The list of rendition planes included flight N85VM of 12 April 2004 on which the applicant had been transferred to and from Romania.

The Fava Report further noted that a flight with registration number N478GS had suffered an accident on 6 December 2004 when landing in Bucharest. The aircraft had reportedly taken off from Bagram Air Base in Afghanistan, and its seven passengers had disappeared following the accident. The report expressed deep concern “that Romanian authorities [had] not initiate[d] an official investigation process ... into the case of a passenger on the aircraft Gulfstream N478G5, who [had been] found carrying a Beretta 9 mm Parabellum pistol with ammunition”.

Furthermore, the applicant pointed out that the international inquiries and the experts heard by the Court had identified the rendition flights on which he had been transferred to and from Romania.

The finding in Mr Hammarberg’s dossier for the Romanian Prosecutor General that the applicant had been transferred to Romania on 12 April 2004 on board N85VM, a flight clearly and consistently associated with the rendition operations, had been confirmed by multiple reliable sources, including the 2014 US Senate Committee Report and the reconstruction by those experts of the applicant’s transfers in CIA custody.

As regards his possible transfer from Romania, the experts had given two dates, agreeing on the most probable date, which constituted sufficient evidence.

The applicant submitted that the Government’s arguments contesting the evidential value of the material before the Court should be rejected in their entirety.

In his view, the Government’s submissions simply constituted an attempt to discredit the findings of reputable officials like the Council of Europe’s Commissioner for Human Rights and Senator Dick Marty, by arguing that these findings were based solely on newspaper articles. In doing so, they failed to take into account the fact that Mr Hammarberg and Senator Marty had engaged in independent investigations and analysis of their own.

Indeed, Commissioner Hammarberg’s dossier for the Romanian Prosecutor General had expressly drawn on the “original investigation and the analysis undertaken by [his] Office during the six of years of [his] mandate as Commissioner, among other sources of information”. Similarly, the 2007 Marty Report had engaged in “analysis of thousands of international flight records – and a network of sources established in numerous countries”.

Further, as regards the statement in the 2007 Marty Report that Romania had entered into a bilateral agreement with the US authorities, the applicant pointed out that, contrary to the Government’s assertion, the fact that Senator Marty had not seen the actual document did not undermine the credibility of his claim that such an agreement had in fact existed, because its existence had been verified by credible sources, some of whom had been directly involved in negotiations that had led to this agreement. The fact that such an agreement had been brokered had recently been corroborated by the 2014 US Senate Committee Report.

For the applicant, there was no doubt that the Romanian authorities had cooperated with the CIA in the HVD Programme. They had granted licences and overflight permissions to facilitate the CIA rendition flights. The AACR’s officials had collaborated with Jeppesen (and, by extension, with Jeppesen’s client, the CIA) by accepting the task of navigating disguised flights into Romanian airports.

As set forth in the 2007 Marty Report, Romania had entered into a bilateral agreement with the United States. The report had named individual office-holders who had known about, authorised and stood accountable for Romania’s role in the CIA’s operation of secret detention facilities on Romanian territory from 2003 to 2005 as follows: the former President of Romania (up to 20 December 2004), Ion Iliescu; the then President of Romania (20 December 2004 onwards), Traian Băsescu; the Presidential Advisor on National Security (until 20 December 2004). Ioan Talpeş; the Minister of National Defence (ministerial oversight up to 20 December 2004), Ioan Mircea Pascu; and the Head of the Directorate for Military Intelligence, Sergiu Tudor Medar.

Romania had therefore participated in the applicant’s ill-treatment and incommunicado detention by entering into that agreement and giving the US the “full extent of permissions and protections it sought” for conducting secret detention and rendition operations on Romanian territory; issuing an order to Romanian military intelligence services on behalf of the President to provide the CIA with all the facilities they had required and to protect their operations in whichever way they had requested; providing the use of a Romanian Government building for hosting the secret prison where Al Nashiri had been detained; actively assisting the landing, departures and stopovers of secret CIA rendition flights including flights which had transported Al Nashiri in and out of Romania; and failing to disclose the truth and effectively investigate the existence of a secret CIA prison and rendition flights in Romania.

Consequently, the applicant’s torture and secret detention, as well as his transfer from Romania in the face of real risks of further torture, secret detention and the death penalty could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur.

Lastly, citing Al Nashiri v. Poland the applicant emphasised that in that case the Court had found that CIA rendition operations had “largely depended on cooperation, assistance and active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated” and that “the cooperation and various forms of assistance of those authorities, such as for instance customising the premises for the CIA’s needs, ensuring security and providing the logistics [had been] the necessary condition for the effective operation of the CIA secret detention facilities”. This was true with respect to Romania. Just as the Court had found it inconceivable that Poland had not known about the secret detention of prisoners on its territory, it was simply inconceivable that Romania had not known that it had been hosting a secret prison.

The applicant contended that Romania had knowingly, intentionally, and actively collaborated and colluded with the CIA’s extraordinary rendition programme, thereby enabling the CIA to subject him to secret detention and ill-treatment in Romania.

The Romanian authorities should have known that high-value detainees would be tortured and ill-treated. Their close degree of cooperation with the CIA’s secret detention operations in Romania must have put Romanian authorities on notice of the prisoners being at risk of secret detention and ill-treatment.

In addition, Romania had had notice of the secret detention, torture and mistreatment of prisoners because of international and Romanian news reports, reports of the UN and human rights organisations and European legal cases that had documented US mistreatment of detainees suspected of terrorism at the material time. The Romanian Government were also presumed to have known of the CIA’s secret detention, torture, and ill-treatment of terrorism suspects through its diplomatic missions.

As the 2007 Marty Report had concluded, Romania had been “knowingly complicit in the CIA’s secret detention programme” and senior Romanian officials had “[known] about, authorised, and [stood] accountable for Romania’s role” in the CIA’s secret detention and rendition operations on Romanian territory”.

Furthermore, the 2014 US Senate Committee Report had confirmed that the Romanian authorities had known that they had been hosting a secret prison and had attempted to cover up this fact. Indeed, the report observed that the Romanian authorities had “entered into an agreement” in 2002 with the US to host the prison, and that the US had paid the Romanian authorities “millions of dollars to host the prison”. It also confirmed that within hours of The Washington Post reporting in November 2005 that Eastern European countries had hosted secret CIA prisons, the Romanian authorities had insisted on closing the CIA prison on their territory.

In the applicant’s submission, the evidence before the Court demonstrated that it was the Romanian authorities which had given the CIA permission to run a secret prison in Bucharest, it was the Romanian authorities who had given the CIA permission to use dummy flight plans to secretly land rendition planes carrying prisoners in and out of the country, and it was Romanian authorities who had given the CIA extraordinary security cover for their operations in Romania.

As expert J.G.S had said at the fact-finding hearing: “it [was] quite clear that the Romanian authorities not only should have known but did know of the nature and purpose of the CIA’s secret operations on their territory”. He had also testified that this level of cooperation had depended on authorisation by the highest levels in the Romanian Government. The 2014 US Senate Committee Report had confirmed this. Mr J.G.S and Mr Black had testified that the Romanian authorities had known the nature and purpose of the CIA activities on Romanian territory because the CIA had paid Romania millions of dollars as a subsidy to host the prisoners. Moreover, the 2014 US Senate Committee Report had also established that it had been at the insistence of the Romanian Government that Detention Site Black had been ultimately closed. The Romanian Government had demanded closure of the CIA prison within hours from the publication of the November 2005 Washington Post article disclosing that CIA “black sites” had existed in Eastern Europe. This clearly confirmed that for as long as the CIA prison had existed on Romanian territory, it had been there with the Romanian Government’s consent.

The applicant referred to the Court’s finding in Al Nashiri v. Poland (cited above) that by June 2003 it was widely known that the US rendition programme had involved secret detention in overseas locations. It stood to reason that Romania, which had hosted a secret CIA prison after Poland and had enabled the applicant’s transfers from its territory well after June 2003, indeed in 2005, had known by then that there had been substantial grounds for believing that the applicant had faced all of these risks.

As regards the statements of Mr Iliescu’s and Mr Talpeş, the applicant maintained that the Government’s submission was yet another example of their consistent refusal to acknowledge the truth about their hosting of a secret CIA prison on Romanian territory. In particular, the Government had quoted selectively from the statement of witness Z, denying that Romania had hosted a secret CIA prison. But a closer look at that statement revealed that Z had actually admitted that the Romanian authorities had supplied a “location” to the CIA.

In this connection, the applicant further referred to testimony given by witnesses X, Y and Z, saying that their statements expressly conceded that CIA flights had landed in Bucharest. In particular, X had said that Romania had partnership relations with similar institutions from other States, including equivalent structures in the United States of America. He also stated that in the framework of these bilateral relations, civil aircraft hired by the partner services on which their representatives travelled had landed at Bucharest Băneasa Airport. Witness Z had confirmed that US government officials had asked the Romanian authorities to provide some locations on Romania’s territory for the deployment of actions meant to fight the dangers of international terrorism and which were to be used by the CIA and that the authorities had “offer[ed] a location for CIA activities”‘. In his September 2013 statement Z had acknowledged that there had been “concrete agreements” that had made possible the operation of the special US flights in Romania and that those flights had not been “under any obligation to obey usual rules imposed on civil flights”.

Moreover, Y testified that, in the context of Romania’s strategic objective of “NATO and European Union integration”, it had been possible that CIA offices had been run on Romanian territory.

Lastly, the applicant reiterated that all the experts heard by the Court at the fact-finding hearing had stated, in unambiguous terms, that Romania not only ought to have known but must have known and had known of the nature and the purpose of the CIA’s secret operations occurring on its territory.

Referring to any knowledge of the US authorities’ practices in respect of suspected terrorist attributable to any Contracting State to the Convention at the relevant time, AI/ICJ pointed to, among other things, to the following facts that had been a matter of public knowledge.

The interveners first emphasised that they had shown in their submissions in El-Masri and Al Nashiri v. Poland (both cited above) that, at least by June 2003, there had been substantial credible evidence in the public domain that in the context of what the USA called the global “war on terror”, US forces had been engaging in enforced disappearances, secret detentions, arbitrary detentions, secret detainee transfers, and torture or other ill-treatment. Further, the submissions showed that, by presidential military order, the USA had established military commissions – executive tribunals with the power to hand down death sentences – for the prosecution of selected non-US nationals accused of involvement in terrorism in proceedings that would not comply with international fair trial standards.

A February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law.

In its annual reports covering the years 2004 and 2005, distributed widely to governments and the media, AI had reported on the growing body of evidence of human rights violations committed by US forces in the counter- terrorism context and stated that these violations, including secret detention and rendition, were continuing. In addition to individual country entries, the global overview pages of both reports addressed US abuses in the “war on terror”. For example, in the report covering 2005 this overview showed how during the year, it had become “increasingly clear how many countries had colluded or participated in supporting US abusive policies and practices in the ‘war on terror’, including torture, ill-treatment secret and unlimited detentions, and unlawful cross-border transfers”.

In June 2004 The Washington Post published a leaked 1 August 2002 memorandum written in the US Department of Justice’s Office of Legal Counsel at the request of the CIA. The memo advised, inter alia, that “under the circumstances of the current war against al Qaeda and its allies”, presidential authority could override the US anti-torture law, that even if an interrogation method did violate that law “necessity or self-defense could provide justifications that would eliminate any criminal liability”, and that there was a “significant range of acts” that, while constituting cruel, inhuman or degrading treatment or punishment, “fail to rise to the level of torture” and need not be criminalised.

In October 2004 AI published a 200-page long analysis of US violations in the “war on terror” and of the US Government documents that had come into the public domain, and including case details of secret transfers of detainees, the alleged existence of secret detention facilities and torture and other ill treatment.

In May 2005, AI published a 150-page long report on US abuses in the “war on terror”, which included cases of alleged torture or other illtreatment, deaths in custody, military commission proceedings, rendition flights, and the cases of “high-value detainees” allegedly held in CIA custody in secret locations in Afghanistan and elsewhere and being subjected to enforced disappearance. The cases described included those of Tanzanian national Ahmed Khalfan Ghailani and German national Khaled El-Masri.

In sum, as the Court held in Al Nashiri v. Poland (cited above), already by June 2003 it had been clear that States had known or should have known about the USA’s rendition and secret detention programme and about the grave human rights violations it entailed as well as allegations of torture and other ill-treatment by US personnel, the indefinite detention regime at Guantánamo and the prospect of unfair trials by the military commission. As detailed above, the body of evidence regarding the USA’s rendition and secret detention programme had only grown between June 2003 and September 2006. The USA’s use of the death penalty remained well-known during this period and the US administration pursued the death penalty from 2002 to 2006 in the high-profile federal prosecution of Zacarias Moussaoui for terrorism offences, as well as moving ahead with a military commission system with the power to hand down death sentences.

The parties expressed opposing views on the issues concerning the standard and burden of proof to be applied in the present case.

The Government once again reiterated that there was no conclusive evidence that the Romanian authorities had in any way participated in the CIA rendition programme by hosting a secret prison for high-value detainees or by any other means.

They agreed with the applicant (see paragraph 488 below) that the Court had accepted that in its establishment of facts and assessment of evidence the co-existence of sufficiently strong, clear and coherent inferences might be considered a proof. Yet in the applicant’s case no such inferences existed.

In the Government’s view, the applicant had adopted a strategy of persuading the Court that the Romanian authorities, including the intelligence services and army, had shared the responsibility for gross violations of human rights during the so-called “rendition programme” based on the idea of, in his view, striking similarities between the present case and El-Masri (cited above).

However, in order for the Court to shift the burden of proof, the applicant was required to establish a prima facie case in favour of his version of events. In the El-Masri case, that applicant’s presence on Macedonian territory at the material time had not been disputed. His detention and interrogation in “the former Yugoslav Republic of Macedonia”, together with his surrender to the US authorities, had not been refuted either. In contrast, in the instant case no detention facility had been established with certainty, there was no certainty as to the flights on which the applicant had allegedly been transferred to and from Romania, and the exact period of the applicant’s alleged detention in Romania had remained unclear.

Furthermore, Mr El-Masri’s description of the circumstances of his detention and torture had been, as the Court held, “very detailed, specific and consistent”. Conversely, in the present case the Court was confronted with the applicant’s incoherent allegations.

As opposed to El-Masri, where a significant amount of evidence had corroborated the applicant’s allegations and had given rise to concordant inferences, in the present case no evidence had been put forward, save for the reports which relied on one another. It was true that the Court had held in the El-Masri judgment that it might examine a case by “drawing inferences from the available material and the authorities’ conduct” and had concluded that the applicant had prevailed in his claims. Yet in the instant case there was no such material and the authorities’ conduct had been, if not beyond any criticism, proactive and had demonstrated good faith. Without any intention to attack and discredit the reports of reputable officials or non-governmental organisations, the Government insisted that the truth emerged at the end of a process of gathering evidence, failing which all the allegations remained simple claims.

The Government further said that they were fully aware of the Court’s standards of proof in cases involving injuries, death or disappearances that occurred in detention in an area within the exclusive control of the authorities of the respondent State, if there was prima facie evidence that the State might be involved. Nevertheless, they contended that a serious explanation, even if not a final one, had already been provided by the Romanian authorities since a serious and independent investigation was still pending before the national authorities.

In view of the foregoing, the Government invited the Court to hold that there was no prima facie evidence in favour of the applicant’s version of events and that, therefore, the burden of proof could not be shifted.

They added, however, that they could not give a final version of the facts since the domestic investigation had not yet been completed.

The applicant maintained that he had adduced strong, clear and concordant facts in support of his claims. In contrast, the Romanian Government had continued to cover up the truth. The Government had an unprecedented advantage over the applicant. They had all the relevant facts in their possession because they had entered into an agreement to host the secret CIA prison, because they had operationalised that agreement, and because they had covered it all up. In contrast, the applicant, still detained at the remote location of Guantánamo Bay, was gagged from speaking of his treatment in Romania.

The applicant reiterated that he had established more than a prima facie case that he had been detained and tortured in Romania under the HVD Programme (see paragraphs 404-405 above). According to the Court’s case-law, the burden of proof now shifted to Romania, particularly because Romania had “exclusive access to information” and witnesses who could corroborate or refute the applicant’s case. However, the Government had failed to provide any such explanation; instead, they engaged in a pattern and practice of obfuscation and denial with respect to the events complained of. They had done so in the context of unprecedented secrecy maintained by the United States and its partner governments with respect to secret detention and extraordinary rendition operations.

Where, as in the present case, the events at issue lay 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 satisfactory and convincing explanation. Where, as in this case, the authorities had failed to provide a convincing explanation and failed to conduct an effective investigation, despite being on notice, at least since November 2005, of the fact that Romania had hosted a secret CIA prison, the Court was entitled to draw inferences adverse to the authorities.

The applicant emphasised that the Court had consistently applied these principles in cases involving injuries, death or disappearances that occurred in detention, including cases where, as here, the Government denied that the individual had been in Government custody at the time of the events at issue. It had also applied these principles where persons had been found dead or injured, or had disappeared, in an area within the exclusive control of the authorities of the State and there had been prima facie evidence that the State might be involved. As the Grand Chamber reiterated in El-Masri, prima facie evidence could itself be provided by proof in the form of concordant inferences, based on which the burden of proof was shifted to the respondent Government.

Furthermore, in Al Nashiri v. Poland (cited above) the Court had established that it was appropriate to adopt a flexible approach towards the evaluation of evidence. The Court had observed that although it had adopted the “beyond reasonable doubt” standard of proof, it also “adopt[ed] the conclusions that [were], in its view, supported by the free evaluation of all evidence, including such inferences as [might] flow from the facts and the parties submissions”. Proof could thus “follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”. In addition, in assessing the evidence, the Court had also taken note of the unique set of constraints on the applicant which had precluded him from testifying about his detention before the Court and of “the very nature and extreme secrecy of the CIA operations in the course of the ‘war on terror’”.

The applicant argued that the same constraints applied in his case against Romania. Indeed, he had been virtually isolated in Guantánamo and unable to talk publicly about his torture and ill-treatment or even submit a statement to the Court because the US authorities had taken the position that his thoughts and memories about his experiences under torture were classified information. Accordingly, they had prohibited him from sharing these experiences with anyone other than his US lawyers, who were prevented from revealing what they had been told by their client on pain of criminal sanction.

Despite the extreme secrecy associated with CIA operations and his inability to address the Court directly, the applicant considered that he had submitted ample evidence in support of his factual claims. Indeed, the documentary and expert evidence offered by him and heard by the Court in the present case was, in his view, akin to the evidence that had been given credence by the Court in Al Nashiri v. Poland.

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 v. Russia, 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; El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393).

Nonetheless, in cases where there are conflicting accounts of events, the Court’s examination necessarily involves the task of establishing facts on which the parties disagree. In such situations the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court (see El-Masri, cited above, § 151; and Imakayeva, cited above, §§ 111-112).

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 which 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; El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali, cited above, § 119).

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; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395).

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; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220).

In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152).

The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraph 16 above; also, compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 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).

The regime applied to high-value detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them incommunicado in continuous solitary confinement 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 Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397-398; and paragraphs 48-58, 85 and 293 above).

As held in Al Nashiri v. Poland (cited above, § 399) and as can be seen from the material cited above (see paragraphs 98-140 above), since an unknown date in mid-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. It has also been submitted that the applicant’s communications with the outside world are virtually non-existent and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified (see paragraph 482 above).

The above difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant’s contact with the outside world and the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before this Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources.

Consequently, the Court’s establishment of the facts of the case 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, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Al Nashiri v. Poland, cited above, § 400, and Husayn (Abu Zubaydah) v. Poland, cited above, § 400).

It is also to be noted that while the Government have firmly denied the applicant’s allegations in so far as they concerned Romania and contested the credibility of various parts of the evidence before the Court, they have not disputed the fact that he was subjected to secret detention and ill-treatment under the HVD Programme. Nor have they disputed his version of the circumstances preceding his alleged rendition to Romania on 12 April 2004 (see paragraphs 395-402 and 419-443 above).

However, the facts complained of in the present case are part of a chain of events lasting from mid-October 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant’s detention and a sequence of alleged rendition flights to the countries concerned. As a result, the Court’s establishment of the facts and assessment of evidence cannot be limited to the events that according to the applicant allegedly took place in Romania but must, in so far as it is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Romania (see Al Nashiri v. Poland, cited above, §§ 401-417, and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-419).

The Court has already established beyond reasonable doubt the facts concerning the applicant’s capture, rendition and secret detention until 6 June 2003, the date of his rendition on plane N379P from Poland to another CIA secret detention facility (see Al Nashiri v. Poland , cited above, §§ 401-417). The relevant passages from Al Nashiri v. Poland containing the Court’s findings of fact are cited above (see paragraph 98 above). Some additional elements, which are all fully consistent with the Court’s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 99-101 above).

It is alleged that before being rendered by the CIA on 12 April 2004 from Guantánamo to Romania on board N85VM the applicant had been detained in other CIA secret detention facilities abroad (see paragraphs 115-116 above).

In Al Nashiri v. Poland (cited above, §§ 408 and 417) the Court held as follows:

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

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.

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

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

Referring to this point in time, the 2014 US Senate Committee Report states that from June 2003 onwards “the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006” (see paragraph 102 above). It further states that in 2003 the CIA arranged for a “temporary patch”, which meant placing the applicant and another detainee – Ramzi bin al-Shibh – in a country whose name was redacted and that by an unspecified – redacted – date in 2003 both of them were transferred out of that country to Guantánamo (see paragraph 109 above).

There can therefore be no doubt that between his transfer from Poland on 6 June 2003 and his transfer to Guantánamo on an unspecified later date in 2003 the applicant was for some time held by the CIA in another country – the first one out of five in which he would be secretly detained between 6 June 2003 and 5 September 2006.

Mr J.G.S. testified that the country in question was identifiable as Morocco and that on 6 June 2003 the plane N379P had taken the applicant and Ramzi bin al-Shibh from Poland to Rabat, Morocco to a facility that at that time had been let to the CIA by their Moroccan counterparts. He stated that the applicant had remained there until 23 September 2003, the date on which he had been transported on plane N313P from Rabat to Guantánamo (see paragraphs 107-108 and 110 above).

The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah) v. Poland, where the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIAassociated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It flew from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 111-112, 274, 326, 337, 356 and 374 above).

According to the RCAA letter of 29 July 2009, N379P’s itinerary was Szczytno airport in Szymany, Poland-Constanţa-Rabat but the airport at which it landed in Romania was Băneasa Airport in Bucharest (see paragraphs 113 and 326 above). This information is consistent with evidence heard from Mr J.G.S., who in Husayn (Abu Zubaydah) v. Poland testified that “this particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland” and that “since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 312; and paragraph 112 above).

The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court’s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 62 and 114 above).

In the light of the material in its possession, the Court finds no counter evidence capable of casting doubt on the accuracy of the expert’s conclusions regarding the above sequence of events, the places of the applicant’s secret detention and the dates of his transfers during the relevant period.

Accordingly, the Court finds it established beyond reasonable doubt that:

(1) on 6 June 2003 on board the rendition plane N379P the applicant was transferred by the CIA from Szymany, Poland to Rabat, Morocco;

(2) from 6 June to 23 September 2003 the applicant was detained in Morocco at a facility used by the CIA;

(3) on 23 September 2003 on board the rendition plane N313P the applicant was transferred by the CIA from Rabat to Guantánamo; and

(4) the applicant was detained in Guantánamo until a two-digit date in April 2004 (redacted in the 2014 US Senate Committee Report), then transferred by the CIA to another detention facility elsewhere.

It is alleged that a CIA secret detention facility operated in Romania from 22 September 2003 to the first days of November 2005, when it was closed following the publication of Dana Priest’s report on CIA overseas clandestine prisons in Eastern Europe in The Washington Post on 2 November 2005 (see, in particular, paragraphs 445-448 above). The Government denied that a CIA detention facility had ever existed on Romania’s territory (see, in particular, paragraphs 420-425 above).

The Court notes at the outset that the following facts are either uncontested or have been confirmed by the Court’s findings in Husayn (Abu Zubaydah) v. Poland and flight data from numerous sources, including the documents produced by the respondent Government:

(a) On 22 September 2003 plane N313P arrived in Szymany, Poland en route from Kabul, left on the same day for Romania and, having indicated in its flight plan Constanţa as its destination, in fact landed at Bucharest Băneasa Airport. On 23 September 2003 the plane took off from Bucharest for Rabat (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 408 and 419; and paragraphs 112-113, 326 and 504 above).

(b) On 5 November 2005 plane N1HC, having indicated in its flight plan Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and on the same day took off from Bucharest for Amman.

(c) On 5 November 2005 plane N248AB arrived in Amman at 23:49 and on 6 November 2005, on the same night, left for Kabul;

(d) On the same night of 5-6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 (N1HC’s landing) and 00:55 (N248AB’s departure) (see paragraph 135 above).

It has not been disputed by the Government that the Washington Post publication was the first one in which East European countries were mentioned in the context of the HVD Programme (see paragraphs 236 and 421 above).

It was followed by subsequent, more specific reports.

On 6 November 2005 Human Rights Watch, in the 2005 HRW Statement, indicated Poland and Romania as the CIA accomplices in the HVD Programme (see paragraphs 226-227 above).

That statement was followed by the HRW List of 30 November 2005 which referred to “ghost prisoners”, including the applicant, considered to be possibly held in secret detention by the CIA (see paragraph 228 above).

A few days later, on 5 December 2005, an ABC News report named Poland and Romania as countries hosting CIA secret prisons and listed the names of eleven top al-Qaeda terrorist suspects, including the applicant, being held in CIA custody. It also stated that, according to the CIA sources, the US authorities had “scrambled to get all the suspects off the European soil before Secretary of State Condoleezza Rice arrived there today” (see paragraph 237 above).

Nor has it been disputed that the above disclosures soon triggered a number of international inquiries into the CIA rendition and secret detention operations and allegations of torture and ill-treatment of prisoners. The multiple investigations by international governmental organisations started with the Council of Europe’s inquiry under Article 52 of the Convention and the Marty Inquiry, followed by the European Parliament’s Fava Inquiry, the 2010 UN Joint Study and the investigative work of the Council of Europe’s Commissioner for Human Rights carried out until 2012. Also, in that context, the ICRC independently prepared its earlier, confidential reports and the 2007 ICRC Report (see paragraphs 246-280, 290 and 294296 above). As a follow-up to the Fava Report, the European Parliament LIBE Committee still continues to investigate the issue of the CIA secret prisons in Europe (see paragraphs 282-290 above).

The initial 2006-2007 reports drawn up in the framework of the inquiries conducted by the international governmental organisations confirmed consistently, albeit in various terms, that there was at least a strong suspicion that a CIA clandestine detention site had operated in Romania.

(a) The 2006 Marty Report stated that, while the factual elements gathered so far had not provided definitive evidence of secret detention centres, Romania was “thus far the only Council of Europe member state to be located on one of the rendition circuits” which bore “all the characteristics of a detainee drop-off point”. The rendition circuit in question was executed on 25 January 2004 by plane N313P which, before landing in Romania, on 23 January 2004 rendered Mr El-Masri from Skopje to the CIA ”black site” in Kabul (see paragraphs 253 and 327-330 above and El Masri, cited above, §§ 21 and 157-158).

(b) The 2007 Marty Report affirmed that there was “now enough evidence to state that secret detention facilities run by the CIA [had] existed in Europe from 2003 to 2005, in particular in Poland and Romania” (see paragraph 258 above). It stated that “Romania [had been] developed into a site in which more detainees were transferred only as the HVD Programme [had] expanded”. It was Senator Marty’s understanding that “the Romanian “black site” [had been] incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005” (see paragraph 261 above).

The report also referred to the “clear inconsistencies in the flight data” provided by various Romanian sources, when compared with data gathered by the Marty Inquiry independently. The disagreement between these sources was found to be “too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destinations by Pilots-in-Command, which were communicated to one authority but not to another”. In sum, the report stated that “presently there exist[ed] no truthful account of detainee transfer flights to Romania” (see paragraph 264 above).

Senator Marty in the 2006 and 2007 Marty Reports, as well as in his affidavit of 24 April 2013 and testimony given at the fact-finding hearing before the Court explained comprehensively the methodology adopted in his inquiry and the sources of information on the basis of which the respective findings had been made (see paragraphs 258, 262, 354 and 379 above).

(c) The Fava Report expressed “serious concern” about twenty-one stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come from or been bound for countries linked with extraordinary rendition circuits.

It was also found that five flight plans had been filed with inconsistencies as they had indicated a landing airport which had not corresponded with the subsequent take-off airport (see paragraphs 271 and 274 above). Moreover, the Fava Report identified three aircraft with multiple stopovers in Romania that already at that early stage of the inquiries into the HVD Programme had been known to have been involved in the CIA rendition operations.

Among those aircraft was N85VM, conclusively identified as having been used for the rendition of Mr Osama Mustafa Nasr aka Abu Omar from Germany to Egypt on 17 February 2003 (see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N313P conclusively identified as having been used for the rendition of Mr El-Masri from Skopje to Kabul on 23 January 2004 (see El-Masri, cited above, §§ 67 and 157-159).

The report also listed flights from suspicious locations that stopped over in Romania in 2003-2005. The first flight N313P, from Szymany, Poland to Bucharest, en route to Rabat, took place on 22 September 2003, the last one, N1HC, from Bucharest to Amman, took place on 5 November 2005 (see paragraphs 271, 273 and 276 above).

The conclusion in the Fava Report was that it could not exclude, “based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services [had] operated in Romania and that no definite evidence ha[d] been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil” (see paragraphs 271 and 280 above).

With reference to that conclusion, Mr Fava testified at the fact-finding hearing that “the conclusion we reached was a very strong suspicion that [a CIA detention facility] existed, not certainty – there was no smoking gun” (see paragraph 363 above).

The Fava Report relied on comprehensive materials from multiple sources, comprising those collected during the TDIP delegation’s visits to the countries concerned, including Romania, extensive flight data, expert evidence, analysis of specific cases of several victims of the CIA extraordinary rendition, interviews with the victims and their lawyers and material acquired in the context of meetings with the national authorities (see paragraphs 268-273 above).

The 2010 UN Study, referring to Romania, mentioned that the analysis of complex aeronautical data had demonstrated the circuit flown by N313P in September 2003 and that the experts had not been able to identify “any definite evidence of a detainee transfer into Romania” taking place prior to that flight (see paragraph 296 above).

Subsequent reports, which were based on fuller knowledge of the HVD Programme emerging from the CIA documents declassified in 2009 and 2010 and took into account progress in the research into rendition flights, contained more categorical conclusions.

(a) Mr Hammarberg, in his dossier of 30 March 2012 addressed to the Romanian Prosecutor General, stated that “sufficient evidence ha[d] now been amassed to allow us to consider the existence of a CIA ”black site” in Romania as a proven fact, and to affirm that serious human rights abuses [had taken] place there”. According to Mr Hammarberg’s findings, the opening of the CIA prison, codenamed “Bright Light” and the start of the CIA detention operations in Bucharest was marked by the plane N313P landing in Bucharest on the night of 22 September 2003. The physical location was identified as the ORNISS building in Bucharest. The dossier included, in chronological order, a list of eight disguised rendition flights into Bucharest in respect of which “dummy” flight plans featuring Constanţa or Timișoara had been filed, starting from the N313P flight on 22 September 2003 and ending with the N860JB flight on 21 August 2005. No specific date of closure of the detention site was given; paragraph 18 of the dossier indicated that it had operated for “a period of at least one year” (see paragraphs 334-339). In response to the Court’s question regarding this point, Mr Hammarberg explained that at that time their research had not managed to establish the precise dates for the closure of the Romanian “black site” nor for the applicant’s transfer from Romania (see paragraph 346 above).

Mr Hammarberg, in his written response to the Court’s questions, gave an account of the sources and methodology on which he relied in his findings. The conclusions as to the operation of a secret CIA ”black site” in Romania were based on “a number of different sources which were crossreferenced and not on one piece of evidence in isolation”. This included among other things, official US documents, flight records and aeronautical data amassed from diverse entities across the global aviation sector (see paragraph 345 above).

(b) The 2015 LIBE Briefing, which in addition to extensive flight data had been based on an analysis of a large amount of new material disclosed in the 2014 US Senate Committee Report, stated that it had been established beyond reasonable doubt that a facility in Romania had been used by the CIA to hold prisoners, that the first prisoners had been transferred to this facility in September 2003 and that the last prisoners had been transferred out of this facility in November 2005. The dossier included a list of fifteen rendition circuits through Romania, the first of which was executed by N313P on 22-23 September 2003, the last of which was executed on 56 November 2005 and involved two planes N1HC (from Romania to Jordan) and N248AB (from Jordan to Afghanistan) (see paragraphs 355-358 above).

Furthermore, in Husayn (Abu Zubaydah) v. Poland Senator Marty and Mr J.G.S., referring in their PowerPoint presentation to the “final rendition circuit” through Poland executed by N313P, testified that this particular circuit had marked the closure of the CIA ”black site” in Poland and the opening of the CIA’s second secret detention site in Europe – located in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 312 and 414; Al Nashiri v. Poland, cited above, § 414; and paragraph 112 above).

At the fact-finding hearing held in the present case the experts heard by the Court confirmed in clear and categorical terms that a secret detention facility had operated in Romania in the period indicated by the applicant. They stated that the N313P flight on 22-23 September 2003 had marked the opening of the site and that a “double-plane switch” circuit involving two planes, identified as N1HC and N248AB had indicated its closure, prompted by the publication of the Washington Post article referred to above (see paragraph 508 above). In the same categorical terms they identified the CIA detention facility located in Romania as the one referred to in the 2014 US Senate Committee Report as “Detention Site Black” (see also paragraphs 160-164 above).

(a) Senator Marty and Mr J.G.S in their PowerPoint presentation, in support of the above conclusions, referred to the extensive flight data and their correlation, as well as to the 2014 US Senate Committee Report. In particular, Mr J.G.S. in connection with several specific references in that report stated that the code name “Detention Site Black” in the report corresponded in such “precise and extensive detail” to other multiple data concerning Romania that “Romania, its territory, its airspace, its detention facility, [was] inseparable from Detention Site Black (see paragraphs 131, 371, 374-376 above)

(b) Mr Black stated that it was “clear, beyond reasonable doubt that there was a CIA detention facility in Romania” and that he was convinced on “a wide array of different types of evidence” that it operated from September 2003 until November 2005. He testified that there was no doubt that the flight in November 2005 – which had been a two-plane switch taking prisoners to Afghanistan – had signalled the end of the Romanian site and that that flight had come within 72 hours after the existence of the site had been revealed in the Washington Post article. He added that the 2014 US Senate Committee Report was very clear that at that point everyone who had been remaining in Romania had been “shipped out to Afghanistan” (see paragraphs 132 and 390 above).

In his testimony, he also mentioned specific HVDs, including the applicant, who had been detained in Romania between September 2003 and 2005, saying that “the fact that those individuals [had been] held in Romania at various points between 2003 and 2005 [was] absolutely beyond reasonable doubt, there [could not] be any alternative narrative to that that [made] any sense”. He further stated that “Detention Site Black [was] the site that fulfil[ed], in terms of its operating times, the flight paths that we [knew] to have been connected to prisoner movements and to the CIA rendition programme. Detention Site Black [was] the one which correlate[d] precisely with those flight paths that our research [had] discovered, [had] reconstructed” (see paragraphs 390 and 392 above).

The 2014 US Senate Committee Report includes several references to Detention Site Black. To begin with, the report confirms that CIA detainees were transferred to Detention Site Black in a country whose name was redacted “in the fall of 2003”. It further confirms that the site still operated in “the fall of 2004”, as well as in April and May 2005 (see paragraphs 160-164 above) and that Mr Al Nashiri was held there in October 2004 and June and July 2005 (see paragraphs 127, 158 and 162-163 above).

Finally, it indicates that Detention Site Black was closed “after publication of the Washington Post article”, following the pressure from the country concerned, which demanded the closure within a number of hours which, although redacted in the text, clearly comprised two digits (see paragraph 133 above).

The Court observes that this indication in theory could mean any time between 10 and 99 hours. However, in reality, given that the CIA had to secure a safe, secret transfer of possibly several detainees by air to another consenting country, such demand could not be dealt with abruptly and immediately and, by the nature of things, inevitably required some preparation and handling of logistical problems. According to the 2014 US Senate Committee Report, the “CIA transferred ... the remaining CIA detainees out of the facility shortly thereafter” (see paragraph 133 above). Having regard to the fact that the Washington Post article was published on 2 November 2005, the dates on which the transfer could realistically have been carried out – that is to say, within the range of 24-99 hours – had to be situated in the short period from 3 to 6 November 2005. This coincides exactly with the flight identified by the experts as the one marking the closure of “Detention Site Black” in Romania, namely N1HC from Bucharest to Amman, executed on 5 November 2005 (see also paragraph 509 above).

Furthermore, all the materials in the Court’s possession, including the list of twenty-one “suspicious flights” produced by the Government unambiguously demonstrate that a series of CIA-associated aircraft landings at Bucharest Băneasa Airport started on 22 September 2003 with N313P and ended on 5 November 2005 with N1HC. Markedly, these two particular flight circuits were disguised by the so-called “dummy flight planning”– a practice that, as described by the experts and analysed by the Court in its previous judgments concerning the CIA rendition operations in Poland, consisted in filling false flight plans that indicated a route which the planes did not, or even intend to, fly. Both aircraft’s flight plans indicated Constanţa as their destination but in fact they landed at and took off from Bucharest Băneasa Airport (see paragraphs 112, with references to Husayn (Abu Zubaydah) v. Poland, and 130, 134-135 and 372-373 above; see also Al Nashiri v. Poland, cited above, §§ 419-422).

The Government acknowledged that on 22-23 September 2003 the flight plan for N313P, initially indicating Constanţa as its destination, had been changed to Bucharest Băneasa Airport when the plane had been en route (see paragraph 439 above). However, they did not see how the change of flight plans executed by the flight operator – a change on which the Romanian authorities had no influence – could be indicative of their complicity in the CIA rendition operations or, still less, of the existence of a CIA “black site” in Romania (see paragraphs 436-440 above).

Addressing the Government’s arguments, the Court finds it appropriate to reiterate certain findings concerning the operation of the CIA-associated flights in Romania emerging from the material in the case file.

(a) As already noted above (see paragraph 512 above), the Fava Report referred to twenty-one stopovers made by the CIA-operated aircraft at Romanian airports during the relevant period. Significantly, most stopovers (thirteen) and take-offs (five) found suspicious took place at Bucharest airports. Several of those flights are included in the Government’s list of twenty-one “suspicious flights” (see paragraphs 273 and 327 above). The Fava Inquiry also identified fourteen different CIA aircraft that landed in Romania at the material time and referred to at least five inconsistent flight plans, concerning, among others, the N1HC flight on 5 November 2005. All these plans indicated destinations filed for Constanţa or Timisoara; however, the aircraft real destination was Bucharest Băneasa Airport, at which those flights in fact landed and from which they took off subsequently (see paragraphs 271-274 and 276 above).

(b) Mr Hammarberg’s dossier for the Romanian Prosecutor General contained a – non-exhaustive – list of the most significant eight flights into Bucharest, starting from N313P on 22 September 2003. Destinations for all of them were disguised by the “dummy” flight planning. All bore the characteristics of “detainee drop-offs”, i.e. transportation of CIA prisoners into the country. All those planes are on the list of twenty-one “suspicious flights” furnished by the Government (see paragraphs 327 and 337 above).

(c) The 2015 LIBE Briefing identified fifteen rendition missions linking Romania to other CIA prison host countries or to known or suspected prisoner transfers. According to that report, the first such mission was executed by N313P on 22 September 2003, the last by N1HC on 5 November 2005 (see paragraphs 357-358 and 514 above).

The list of fifteen rendition missions in the 2015 LIBE Briefing overlaps with the Government’s list of twenty-one “suspicious flights” (see paragraphs 327 and 357-358 above).

(d) In all the inquiries conducted by the international governmental and non-governmental organisations, which were extensively referred to above, most planes included in the Government’s list have been conclusively and definitely identified as carrying out the CIA rendition missions (see paragraphs 250-264; 268-290; 296; 327-330; 334-336; and 355-358 above).

(e) It emerges from the comparison of the list of twenty-one “suspicious flights” with the above reports identifying the aircraft associated with the CIA’s transportation of prisoners that between 23 September 2003 and 5 November 2005 there was a continued, steady and concentrated flow of those planes through Bucharest Băneasa Airport. According to the material produced by the Government themselves, during that period fifteen CIA flights arrived at Bucharest Băneasa Airport and only two were recorded by the Romanian authorities as landing at Constanţa Mihail Kogălniceanu Airport. The CIA flights into Bucharest arrived at fairly regular intervals of between one and some three months (see paragraphs 327 and 357-358 above).

Considering the material referred to above as a whole, the Court is satisfied that there is prima facie evidence in favour of the applicant’s allegation that the CIA secret detention site operated in Romania between 22 September 2003 and the beginning of November 2005. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165, and paragraphs 492-493 above).

However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant’s allegations. Apart from their firm, albeit general, denial that the facts as presented by the applicant and disclosed in the international inquiries – to begin with the Marty Inquiry and Mr Hammarberg’s investigative work – never took place or were grossly distorted to Romania’s disadvantage, they have not offered any cogent reasons for the series of landings of CIA-associated aircraft at Bucharest between 22 September 2003 and 5 November 2005 (see also Al Nashiri v. Poland, cited above, § 414; and Husayn (Abu Zubaydah) v. Poland, cited above, § 414).

Likewise, the Government have not produced any evidence capable of contradicting the findings of the international inquiries and the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Romania. Nor have they refuted expert evidence to the effect that the CIA prison referred to in the 2014 US Senate Report as “Detention Site Black” was located in Romania (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415).

In that context, the Court cannot but note that all the international inquiries and other reports challenged by the Government were based on extensive, meticulous work which was done by the experts and politicians of the highest integrity and competence and whose only aim and mission was to reveal the facts and establish the truth about what had occurred in Europe during the CIA rendition operations. Their work was often impeded by the extreme secrecy surrounding the CIA operations, the uncooperative attitude of the national authorities and the lack of access to the necessary information – information which was revealed only gradually, over many years and which still remains incomplete due to the classification of essential documents, in particular the full version of the 2014 US Senate Committee Report. It is worth noting that the inquiries conducted in 20062007 did not have the benefit of access to the CIA declassified documents, which were released in 2009-2010 (see paragraphs 36-58 above) and which provided an important insight into the fate of specific HVDs, including Mr Al Nashiri, with such details as dates of detainees’ transfers between the CIA “black sites” and interrogation schedules.

As regards the Government’s challenge to the impartiality and credibility of Reprieve, based on its involvement in ongoing investigations into CIA rendition and secret detention and case work regarding Guantánamo prisoners (see paragraph 434 above), the Court finds no ground whatsoever to consider that Reprieve and its experts, who have – as for instance Mr Black – also been involved in the European Parliament’s inquiry, lack objectivity in representing the facts concerning the operation of the HVD Programme in Europe and the plight of detainees, including the applicant.

In so far as the Government can be seen as impliedly contesting the credibility of evidence from other experts heard at the fact-finding hearing (see paragraphs 399 and 430-435 above), the Court would wish to underline that Mr Fava, Senator Marty and Mr J.G.S. already gave evidence in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland. The Court, in its examination of those cases, relied heavily on their testimonies considering them to be one of the most important parts of the evidence and finding them fully reliable and credible (see Al Nashiri v. Poland, cited above, §§ 404, 415, 434-436 and 441; and Husayn (Abu Zubaydah) v Poland, cited above, §§ 404, 415-416, 426-427, 434- 436, 439-440). Furthermore, in El-Masri the Court considered the expert report from Mr J.G.S. to be “compelling evidence” which was duly taken into account in its establishment of the facts in the case (see El-Masri, cited above, §§ 159 and 166).

Consequently, in the Court’s eyes, there is nothing in the Government’s submission that would be capable of shedding the doubt on the integrity and dependability of the experts whose testimony was taken in the present case.

The Government also argued that the fact that the sources relied on by the applicant, including the 2007 Marty Report and Mr Hammarberg’s dossier, had given different indications as to the exact location of the alleged “black site” in Romania deprived his allegations of credibility. Referring in particular to the ORNISS building, they relied on witness R’s statements obtained in the investigation denying that this location had, or could ever have been, used for the CIA prison (see paragraphs 325 and 422425 above).

The Court does not find these arguments convincing.

It is true that the applicant, relying on the press disclosures, indicated the ORNISS building as a probable CIA prison. However, considering the secrecy of the CIA operations it cannot be realistically expected that this kind of indication will be absolutely certain, unless the governments concerned decide to disclose such locations and formally “officialise” the information circulating in the public domain. In that regard, the Court would note in passing that the likelihood of the ORNISS building having hosted the CIA facility has also been considered in the inquiry conducted by the European Parliament; however, the Romanian authorities did not enable the LIBE delegation to visit the site during their fact-finding mission in September 2015 (see paragraphs 288-290 above).

The Court will not speculate on that likelihood. Nor is it necessary for the purposes of its ruling to establish where the CIA facility was exactly located. Given the coherent and unrefuted evidence corroborating the applicant’s allegations as to the existence of the CIA “black site” in Romania, the fact that he did not state its precise location does not undermine the credibility of his allegations.

In view of the foregoing, the Government’s objection to the credibility of the evidence and sources relied on by the applicant (see paragraphs 430-435 above) cannot be upheld.

Consequently, the Court considers the applicant’s allegations sufficiently convincing and, having regard to the above evidence from numerous sources corroborating his version, finds it established beyond reasonable doubt that:

(a) a CIA detention facility, codenamed Detention Site Black in the 2014 US Senate Committee Report, was located in Romania;

(b) the facility operated from 22 September 2003 and its opening was marked by flight N313P which took off from Szymany, Poland on 22 September 2003 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport on the same day; and

(c) the facility was closed on the Romanian authorities’ demand and its closure was marked by flight N1HC which took off from Porto, Portugal on 5 November 2005 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport and on the same day took off for Amman, Jordan.

It is alleged that the applicant was transferred to Romania from Guantánamo on board N85VM on 12 April 2004 and that he was detained at Detention Site Black in Romania, also codenamed “Bright Light” or “Britelite” until at least 6 October 2005 or, at the latest, until 5 November 2005 (see paragraphs 115-116 and 445-451 above). The Government firmly contested this (see paragraphs 426-429 and 436-437 above).

The Court is mindful that, as regards the applicant’s actual presence in Romania, there is no direct evidence that it was the applicant who was transported on board the N85VM flight from Guantánamo to Bucharest or that he was subsequently transferred from Bucharest to another CIA secret detention facility on 6 October or 5 November 2006, the two possible dates indicated by the experts (see paragraphs 129-135 above).

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 allowed 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.

No trace of the applicant can, or will, be found in any official flight or border police records in Romania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never appeared in a record of persons on board filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411).

In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Black in Romania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 499, 507 and 527 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant’s rendition and detention in 2003-2005 (see paragraphs 102-140, 159-164, 167-190 and 251-393 above).

The Court observes that the following facts either are not disputed or have also been confirmed by flight data from numerous sources, including the documents produced by the respondent Government:

(a) On 12 April 2004 plane N85VM, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed in Băneasa Airport in Bucharest and took off from there on the same day (see paragraph 118 above);

(b) that on 5 October 2005 plane N308AB, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and took off from Bucharest for Tirana on the same day;

(c) that on 5 October 2005 plane N787WH landed in Tirana at 05:52 and stayed there until 23:44, at which time it departed for Shannon;

(d) that on 5 October 2005 both N308AB and N787WH were in the same airport in Tirana between 22:38 (N308AB’s landing) and 23:44 (N787WH’s departure);

(e) that on 6 October 2005 N787WH, having indicated in its flight plans Tallinn, Estonia as its destination, in fact landed at Vilnius International Airport in Lithuania (see paragraphs 135 and 331 above).

As regards the rendition circuit of 5-6 November 2005, the Court would reiterate that it has already been established that:

- on 5 November 2005 N1HC, having disguised its destination as Constanţa, in fact landed at Bucharest Băneasa Airport and took off from there for Amman, arriving there in the night on 5 November 2005;

- N248AB arrived in Amman 6 November 2005, and on the same night, left for Kabul; and

- on the same night of 5/6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 and 00:55 (see paragraphs 509 and 527 above).

The Court has also established that after his transfers from Poland to Morocco and from Morocco to Guantánamo the applicant was detained in Guantánamo until an unspecified two-digit date in April 2004 (see paragraph 507 above). As noted above, the 2014 US Senate Committee Report states that by that date, “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” (see paragraphs 114 and 505 above, with further references).

Mr J.G.S., in his testimony, explained that the use of the word “facilities” in the plural in the 2014 US Senate Committee Report was significant in the context of the applicant’s detention given that, as the very same report established, following his transfer from Poland, he had been held at five different CIA “black sites” (see also paragraphs 102 and 104108 above). Mr Al Nashiri could not, therefore, have been transferred from Guantánamo back to Morocco. Mr J.G.S. further explained that at the relevant time there had been two distinct detainee transfers from Guantánamo; the first which had taken some detainees to Rabat on 27 March 2004 and the second which had taken the remaining ones on plane N85VM to Romania, via a stopover in Tenerife, on 12 April 2004. This, he said, was the sole outward flight linking Guantánamo with Romania. Also, it emerged from the 2014 US Senate Committee Report and cables regarding the applicant’s treatment that he found himself at Detention Site Black in the third and fourth quarter of 2004 and in July 2005. Mr J.G.S concluded that, in order for the applicant to be at Detention Site Black or “Britelite” by that time, he had to have been brought to Romania on flight N85VM on 12 April 2004 (see paragraphs 119-120 above).

Moreover, in respect of that flight the CIA had recourse to its systematic practice of disguised flight planning which, as the expert stated, “in fact became a tell-tale sign of rendition or detainee transfer activity on such flights” (see paragraph 119 above).

Mr Black stated that he was aware of two possible flights that could have taken the applicant into Romania and N85VM was one of them. He indicated that there had been a potential other flight that had occurred in February 2005. While it was known for a fact that the applicant had been in Romania after February 2005 and in June 2005, there were also indications that he had been held in Romania before, in late 2004. That led Mr Black to prefer, of these two possibilities, the 12 April 2004 flight as being the more likely of the two (see paragraph 121 above).

The Government acknowledged that the flight plan for N85VM, initially indicating Constanţa as its destination, had been changed to Bucharest, Băneasa Airport when the plane had been en route but did not consider that this element could confirm the applicant’s secret detention in Romania (see paragraph 437 above). They produced documents issued by the RAS at Băneasa Airport in connection with the N85VM landing on 12 April 2004 (see paragraph 118 above).

As in respect of other allegedly “suspicious” flights, the Government asserted that the flight had been of a “private and non-commercial nature” and had not been executed in connection with the HVD Programme (see paragraph 436 above).

However, this assertion does not seem to be supported by the materials gathered in the present case. To the contrary, the Court finds that in addition to the expert evidence referred to above, there is other abundant evidence to the effect that on 12 April 2004 plane N85VM executed a rendition mission to Romania with the purpose of “dropping off” detainees from Guantánamo.

In that regard, the Court observes that since at least 2007 the findings of the international inquiries have clearly associated N85VM with the CIA rendition operations (see paragraphs 271- 273, 337, 342 and 358 above). As already noted above, N85VM was conclusively identified as the plane used earlier for the rendition of Osama Mustafa Nasr otherwise known as Abu Omar (see paragraph 512 above). The former Council of Europe’s Commissioner for Human Rights dossier for the Romanian Prosecutor General included that flight among disguised rendition flights into Bucharest, bearing the character of detainee “drop-off” (see paragraph 337 above). The same dossier listed the applicant among HVDs who had been brought to a CIA “black site” in Romania and indicated 12 April 2004 as the date of his transfer to Romania (see paragraph 342 above).

The 2015 LIBE Briefing indicated flight N85VM on 12 April 2004 among the missions carried out under rendition contracts (see paragraph 358 above).

That flight is also listed among twenty-one “suspicious flights” in the document produced by the Government (see paragraph 327 above).

As to the applicant’s rendition by the CIA from Romania, the experts gave 6 October 2005 and 5 November 2005 as two possible dates of the applicant’s transfer (see paragraphs 129-132 above).

Mr J.G.S described in detail the CIA “plane-switch” operation that, according to him, had taken place in the course of the flight circuit on 56 October 2005 and involved two aircraft: N308AB and N787WH. On this premise, on 5 October 2005 the applicant was taken on board N308AB from Băneasa Bucharest City Airport to Tirana and, subsequently, on board N787WH to Vilnius to a CIA ”black site” in Lithuania, referred to as “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 130-131 above).

Mr Black considered both dates as probable, with the 6 October 2005 transfer of the applicant being more likely (see paragraph 132 above).

Having regard to all the various documentary and oral evidence referred to above, the Court is satisfied that there is prima facie evidence in favour of the applicant’s version of the events and that the burden of proof should shift to the Government.

Yet again in the Court’s view the Government have failed to give any convincing grounds to explain why the evidence considered above cannot support the applicant’s allegations. They asserted that the applicant’s version of events should be rejected as it was incoherent and that in his account of the facts there had been inconsistencies regarding the dates, circumstances and the exact period of his alleged detention in Romania (see paragraphs 426-429 above).

The Court does not share the Government’s assessment.

While it is true that, with the passage of time, the applicant adduced newly disclosed facts relevant for his complaints or corrected the dates initially given for his detention (see paragraphs 115-116 above), this does not by itself render his version of events inconsistent or incredible. In that context the Court would again refer to the fact that since his capture in midOctober 2002 the applicant has been continually prevented from giving any direct account of his fate even to the counsel representing him before the Court (see paragraphs 494-497 above).

Furthermore, having regard to the above evidence demonstrating clearly, consistently and conclusively the chronology of the events preceding the applicant’s transfer to Romania, his transfer to Romania on 12 April 2004 and his presence at Detention Site Black located in Romania in 2004 and 2005 (see paragraphs 126-127, 158 and 162-163 above and 545 below), as well as expert evidence confirming that there were two – and only two – possible dates on which he could be taken by the CIA out of Romania, the Court does not find it indispensable to determine on which specific date the transfer occurred. It is certain and beyond any reasonable doubt that the applicant, once detained at Detention Site Black and, as confirmed by the 2014 US Senate Committee Report and the experts, still present there at least until July 2005, must have been transferred out of it at some later point before or when the site was definitely closed on 5 November 2005 (see paragraph 527 above). The experts’ conclusions are founded on in-depth analysis of extensive international aviation data, contractual documents pertaining to rendition missions executed by the air companies used by the CIA and large amount of data released by the US authorities, including the CIA. On this basis, they gave a time-frame which is sufficiently accurate for the Court to conclude that the applicant must have been taken out of Romania either on 6 October 2005 or on 5 November 2005 to one of the – at the time two – remaining CIA detention facilities, referred to in the 2014 US Senate Committee Report as Detention Site Violet and Detention Site Brown.

Accordingly, the Court finds it established beyond reasonable doubt that:

(a) On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM.

(b) From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code-named “Detention Site Black” according to the 2014 US Senate Committee Report.

(c) On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code-named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report.

It is alleged that during his secret detention in Romania the applicant was subjected to torture and other forms of treatment prohibited by Article 3 of the Convention. The Government have not addressed this issue.

The Court observes that, in contrast to Al Nashiri v. Poland where the treatment to which the applicant was subjected by the CIA during his detention in Poland could be established with certainty owing to the CIA’s declassified materials depicting in graphic detail the torture inflicted on him in the course of the interrogations (see Al Nashiri v. Poland, cited above, §§ 416 and 514-516), in the present case there is no evidence demonstrating that at Detention Site Black in Romania he was subjected to EITs in connection with interrogations (see paragraphs 48-55 above).

As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report mentions in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006 (see paragraph 94 above).

In respect of the applicant, the report states that in the “final years” of his detention “most of the intelligence requirements for Al Nashiri involved showing [him] photographs”. Those “debriefings” were suspended in June 2005 apparently because of the low value of intelligence obtained from him and “because debriefings often were the ‘catalyst’ for his outbursts” (see paragraphs 126-127 above). Other heavily redacted passages in the report speak of “feeding him rectally”, which resulted from his “short-lived hunger strike” at some unspecified time in 2004. It is also mentioned that in October 2004 he underwent a psychological assessment in the context of “management challenges” posed to the CIA by psychological problems experienced by the detainees “who had been held in austere conditions and in solitary confinement”. The applicant’s assessment was used by the CIA in discussions on “establishing an endgame” for the HVD Programme (see paragraphs 126, 158 and 162-163 above). In July 2005 the CIA expressed concern regarding the applicant’s “continued state of depression and uncooperative attitude”. Days later a psychologist established that the applicant was “on the verge of a breakdown” (see paragraph 158 above).

According to the experts, even though the applicant was in all likelihood no longer interrogated with the use of the EITs, he did, as Mr J.G.S. stated “purely by virtue of the conditions in which he [had been] held” suffer ill-treatment (see paragraph 124 above). Mr Black added that it was clear that the applicant, in particular when he had been in Romania, was experiencing serious psychological problems as a result of the treatment he had received (see paragraph 125 above).

As regards the Court’s establishment of the facts of the case, the detailed rules governing the conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 12 April 2004 to 6 October 2005 or 5 November 2005. The Court therefore finds it established beyond any reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 56-58 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510).

While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Black for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court observes that the regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraph 56-58 above).

The 2014 US Senate Committee Report, in the chapter giving details as to the establishment of Detention Site Black, states that in an unspecified month (redacted the text) in 2002 the CIA “entered into an agreement” with the country concerned “to host a CIA detention facility”.

While the terms of that agreement have not been disclosed, it appears from subsequent passages that, in order to demonstrate to the country’s authority (or person) whose name was redacted and to “the highest levels of the Country ... government” that the US authorities “deeply appreciate[d] their cooperation and support for the detention program”, the CIA station in the country was invited by their Headquarters “to identify ways to support the” – again redacted – country’s bodies (presumably, or activities) by financial means, defined as a “subsidy” (see paragraph 161 above).

The requested subsidy which was received in appreciation of “cooperation and support” amounted to a sum (redacted in the text) that was a multiple of USD million; in fact, the amount which was initially put on – in the report’s words – “wish list” presented on behalf of the country by the CIA station was later increased by a further (redacted) multiple of USD million (see paragraph 161 above).

The fact that such financial rewards were, as a matter of the general policy and practice, offered to the authorities of countries hosting CIA “black sites” is also confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct “wish lists” of proposed financial assistance” and “to ‘think big’ in terms of that assistance” (see paragraph 97 above).

In that context, the Court would also wish to refer to its findings regarding the national authorities’ knowledge of the CIA HVD Programme in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and the issue of the alleged existence of a bilateral agreement between Poland and the USA on the setting up and running of a secret CIA prison. In that case, the Court did not find it necessary for its examination of the case to establish whether such agreement or agreements existed and if so, in what format or what was specifically provided therein. It did, however, consider it inconceivable that the rendition aircraft could have crossed Polish airspace, landed at and departed from a Polish airport and that the CIA could have occupied the premises in Poland without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed (see Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430).

The same conclusion is valid in respect of Romania; moreover, in the present case it has been reinforced by evidence from the 2014 US Senate Committee Report, unambiguously demonstrating the existence of a bilateral agreement between Romania and the USA on hosting Detention Site Black on Romanian territory.

The Court would also add that the above-cited sections of the 2014 US Senate Committee Report further support the conclusions of the 2007 Marty Report, stating that “the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level”, that “the CIA brokered ‘operating agreements’ with the Governments of Poland and Romania to hold its high-value detainees ... in secret detention facilities on their respective territories” and that “Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference” (see paragraph 260 above; see also Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430).

In his affidavit made several years later, on 24 April 2013, Senator Marty stated that his “convictions regarding Romania’s participation in the CIA’s HVD Programme were unambiguous and unwavering”, adding that “up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports” and that his “certitude that a CIA ‘black site’ existed in Romania [had] only increased since that time” (see paragraph 354 above).

At the fact-finding hearing he added that, based on “extremely precise testimony” obtained in the course of his inquiry, the Romanian officials “must have known that the CIA used their territory for transfers of prisoners in the context of the war on terror” (see paragraph 380 above)

In that regard, the Court notes that the 2007 Marty Report listed by name several individual high-office holders who “knew about, authorised and stand accountable for Romania’s role in the CIA’s operation of ‘outoftheatre’ secret detention facilities on Romanian territory, from 2003 to 2005” (see paragraph 262 above).

Two of those identified in the report, namely former President of Romania, Ion Iliescu and his former Advisor on National Security, Ioan Talpeş several years later made public statements relating to the CIA rendition operation in their interviews given to Spiegel Online in 2014 and 2015 (see paragraphs 244 and 245 above).

In December 2014, in the first Spiegel Online publication, Mr Talpeş was reported as saying that “there were one or two locations in Romania at which the CIA probably held persons who were subjected to inhuman treatment”. It was further reported that “had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation” and that in that context “it was agreed that the CIA could carry out its own activities in certain locations”. He did not know where they were and “Romania was, expressly, not interested in what the CIA was doing there”. Mr Talpeş also told Spiegel Online that in 2003 and 2004 he had informed President Iliescu that the CIA had carried out “certain activities” on Romanian territory; at that time “he did not think that the CIA could possibly torture captives” (see paragraph 244 above).

In April 2015, in the second Spiegel Online publication, Mr Iliescu was reported as stating that “around the turn of the year 2002-2003, our allies asked us for a site” and that he, as Head of State, had in principle granted that request but the details had been taken care of by Mr Talpeş. He added that “we [had not interfered] with the activities of the USA on this site”.

Spiegel Online further reported that Mr Talpeş had confirmed Mr Iliescu’s statements, adding that at the turn of 2002-2003 he had received a request from a representative of the CIA in Romania for premises, which the CIA needed for its own activities. He had arranged for a building in Bucharest to be given to the CIA. The building was used by the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not reveal its location (see paragraph 245 above).

In that context, it is also to be noted that the 2016 EP Resolution states that Mr Talpeş “admitted on record to the European Parliament delegation that he had been fully aware of the CIA’s presence on Romanian territory, acknowledging that he had given permission to ‘lease’ a government building to the CIA” (see paragraph 290 above).

Referring to Mr Iliescu’s and Mr Talpeş’ interviews in Spiegel Online, the Government argued that subsequently their initially ambiguous statements had been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. In that regard, the Government also relied on evidence from witnesses obtained in the criminal investigation conducted in Romania (see paragraphs 441-442 above).

The Court does not share this assessment.

It is true that certain Romanian officials, for instance Y and Z, who testified in the investigation in May and June 2015, denied receiving any such request or having any knowledge of the existence of the CIA prisons in the country (see paragraphs 300-302 above).

Yet in that regard the Court cannot but note that witness Z in his testimony given on 18 June 2015 nevertheless confirmed that “USA Government officials [had] asked the Romanian authorities to offer some locations on Romanian territory to be used for actions of combating the international terrorist threats by the representatives of the CIA, on the same pattern as that used in the other NATO Member States” and that “finally one single location [had been] offered”. It was understood “at that stage, in 2003, that it should be an office building in Bucharest” (see paragraph 302 above).

The accounts given by Mr Talpeş and Mr Iliescu to Spiegel Online in their interviews and Mr Talpeş’ admission to the European Parliament’s delegation match the disclosures in the 2014 US Senate Committee Report, in particular regarding the date of the agreement to host a CIA secret detention site (2002), the fact that the Romanian authorities were asked for premises for the CIA, the time at which the premises were provided (2003) and the fact that they were informed of the purpose for which the premises that Romania offered were to be used (see paragraphs 161 and 548 above). They also correspond to the Court’s above findings as to the dates marking the opening of Detention Site Black in Romania (see paragraph 527 above).

The statements obtained in the investigation relied on by the Government are in a marked contrast to the disclosures made by the US authorities, Romania’s partner under the agreement. The Court does not see how the findings of the US Senate Intelligence Committee, based on a several-year-long investigation and in-depth analysis of first-hand evidence, which in most part came from classified “top secret” sources, including more than six million pages of CIA documents (see paragraphs 78-80 above) could be undermined by the material referred to by the Government.

The 2014 US Senate Committee Report, in the chapter concerning the establishment of the CIA Detention Site Black (see paragraphs 161 and 548 above) also refers to several interventions vis-à-vis the CIA made by the US ambassador in the country in the context of the operation of the CIA HVD Programme in that country and public disclosures of ill-treatment of detainees in US custody. First, in August 2003, he expressed concern as to whether the State Department was aware of the CIA detention facility in the country and its “potential impact” on US policy in respect of the State concerned. The second and third interventions, prompted by “revelations about US detainee abuses” were made in May 2004 and in the “fall of 2004”.

The report further states that “while it is unclear how the ambassador’s concerns were resolved, he later joined the chief of Station in making a presentation” to the country’s authorities (or representatives) whose names were redacted in the text. The presentation did not describe the EITs but “represented that without the full range of these interrogation measures” the US “would not have succeeded in overcoming [the] resistance “of Khalid Sheikh Mohammed” and “other equally resistant HVDs”. The presentation also included representations “attributing to CIA detainees critical information” on several terror plots, including the “Karachi Plot”, the “Heathrow Plot” and the “Second Wave Plot”. Also, in the context of intelligence obtained, several well-known HVDs in US custody were mentioned by name (see paragraph 161 above).

The above information originated in an evidential source to which the Court attributes utmost credibility (see also paragraph 559 above). It gives a description of a concrete event – an oral presentation – that occurred at some time following “the fall of 2004” and during which, in the context of the operation of Detention Site Black in the country, the Romanian authorities were presented with an outline of the CIA HVD Programme by the US officials. Even though the format of the meeting and names or functions of participants representing the host country have not been revealed, the disclosure clearly shows that the presentation included a fairly extensive account of the HVD Programme. To begin with, the US officials clearly spoke of intelligence that had been obtained from high-value detainees through “overcoming resistance” by means of a “full range of interrogation measures”. They also suggested that specific terrorist suspects in CIA custody had provided “critical intelligence” on prominent terror plots. CIA prisoners whose resistance was “overcome” as a result of interrogations were spoken of, to mention only Khalid Sheikh Mohammed, the top HVD in CIA custody, suspected of masterminding the 11 September 2001 terrorist attacks in the USA.

In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities cooperated with the CIA in disguising the rendition aircraft’s actual routes and validated incomplete or false flight plans in order to cover up the CIA activities in the country was considered relevant for the Court’s assessment of the State authorities’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). The Court will follow that approach in analysing the facts of the present case.

It is to be reiterated that the Government acknowledged that in respect of two flights, namely N313P on 22 September 2003 and NVM85 on 12 April 2004 the flight plans had been changed when the planes had been in the air. They denied that any role in the process had been played by the Romanian authorities, except for a passive, “automatic” acceptance of the change for which the plane operator had been solely responsible and assistance in transmitting the flight plans to the entity managing the integrated initial flight plan processing system (see paragraph 439 above).

However, as already noted above, the clear inconsistencies in the flight data pertaining to destinations where the CIA-associated aircraft were supposed to arrive and from where they actually took off presented by the Romanian authorities were already identified in the 2007 Marty Report and the Fava Report (see paragraphs 264 and 512 above). Also, Mr Hammarberg’s dossier addressed to the Romanian Prosecutor General listed eight rendition flight circuits occurring between 22 September 2003 and 21 August 2005 in respect of which false flight plans had been filed (see paragraph 337 above).

The practice of so-called “dummy” flight planning, i.e. a process of intentional disguise of flight plans for rendition aircraft used by the air companies contracted by the CIA, for instance Jeppesen Dataplan Inc. or Richmor Aviation (see paragraphs 63-70 above), was explained by Senator Marty and Mr J.G.S. in their testimony during the PowerPoint presentation on the basis of two examples of the CIA rendition circuits through Romania executed by plane N313P on 20-24 September 2003 and 16-28 January 2004 (see paragraphs 328 and 371 above). The experts described the “dummy” flight planning as “a systematic practice deployed by the CIA and its aviation services providers to disguise CIA flights into and out of its most sensitive operational locations”. They added that the CIA could not execute this tactic alone since it “depended upon, however discrete, a role played by the national counterpart authority”. The Romanian documentary records demonstrated the landing of N313P on 25 January 2004 at Bucharest Băneasa Airport despite the absence of a valid flight plan. According to the experts, “this was part of a systematic practice and through our investigations we [had] generated numerous, up to twelve instances on which CIA rendition aircraft [had] transferred detainees into, and out of, Bucharest, Romania” (see paragraph 373 above).

In this connection, the Court would also reiterate its above findings that the flights N313P and N1HC marking the opening and the closure of the CIA detention facility in Romania, flight N85VM, identified as the one that brought the applicant into Romania and flight N308AB, identified as one of the two possible flights on which the applicant was taken out of Romania were concealed by the “dummy” flight planning (see paragraphs 519, 527, 531, 534-537 and 542 above)

As the Court found in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the “dummy” flight planning, a deliberate effort to cover up the CIA flights, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country’s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424).

Consequently, the fact that the Romanian aviation authorities navigated the CIA flights into Bucharest, despite the fact that the relevant flight plans named Constanţa or Timișoara as the airports of destination and accepted flight plans naming those destinations but navigated the planes to Bucharest demonstrated that they knowingly assisted in the process of disguise of the CIA planes (ibid.).

The Government asserted that, in contrast to the circumstances in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights (see paragraphs 436-440 above).

In that regard they relied on evidence from witnesses heard in the investigation, who had not related any special treatment of the US flights that would deviate from routine procedures for any ordinary flight (see paragraphs 437-438 above).

The Court notes that, indeed, several witnesses said that they had not heard about or seen any “clandestine passengers”, “detainees” or “any passenger especially of Arab origin” (see paragraphs 306-309 and 317-319 above) or that they had not noted “anything out of the ordinary when the ‘private planes’ [had] landed” or that there had been “no special services provided” (see paragraphs 320 and 323 above).

However, the statements of several other witnesses who referred to the “special” or “N” status flights with the US registrations contradict the Government’s assertion.

Witness E knew about three or four such flights that landed at night time and parked on the airport platform for about 10-15 minutes. He said that that the only person approaching them had been witness X.

Witness G knew of the “N” flights having been announced as special flights for which the staff had not been requested. Witness O spoke of one plane that had been treated differently and the staff had been asked to stay in the office and not go to the plane. Witness P knew that special flights had been “carried out at night”; also, on one night he had seen a plane without a call sign and a man in dark overalls and military boots walking a dog near the plane (see paragraphs 310, 314 and 322-323 above).

Witness X, apparently the only person who had been seen approaching the “special planes” did not explain in concrete terms what had in reality been going on but said that his presence in the airport had been connected with “bilateral relations” with the US” equivalent structures” and “aimed at ensuring protocol relations during processing as well as bilateral courtesy-setting according to diplomatic norms and international rules” (see paragraph 299 above).

Witness Z, in his statement of 17 September 2013 given to the prosecutor was more explicit. He confirmed that in the context of Romania’s forthcoming accession to NATO “some developments or agreements [had taken] place in relation to the American flights to be operated by the CIA” and that, “from about 2003 onwards several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions than those provided for by international customs”. He added that “those flights [had] had a special character and they [had] not [been] under an obligation to obey usual rules imposed on civil flights” (see paragraph 301 above).

Lastly, in the Court’s view, the way in which the Romanian authorities dealt with the accident on the landing of the aircraft N478GS that occurred on 6 December 2004 is one more element that contradicts the Government’s above assertion as to the lack of any special treatment of the CIA-associated flights. The incident was described in the Fava Report and the 2007 EP Resolution, and was also related by Mr Fava at the fact-finding hearing (see paragraphs 275, 280 and 362 above). The presence in Romania of seven passengers on the plane which came from Bagram, Afghanistan, was apparently concealed. Only on the TDIP’s considerable insistence did the Romanian authorities give them a list of passengers, all of them US citizens with service passports. One of them was armed with a Beretta gun and had ammunition on him. No questions were asked about the purpose of their trip from Bagram, a place reported as hosting a CIA detention site for the purposes of interrogations of captured terrorist-suspects (see paragraph 362 above).

As in Al Nashiri v. Poland (cited above § 434) and Husayn (Abu Zubaydah) v. Poland (cited above § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State’s knowledge of the CIA rendition and secret detention operations in 2003-2005.

In his testimony in Al Nashiri v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including The Washington Post and ABC News disclosures of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly hosted CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice’s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects which had been recorded in the debriefing that there had been an attempt on the USA’s part to share the “weight of accusations” (ibid.).

In the present case Mr Fava testified that it had emerged from the debriefing that, at that stage, all the governments had known that this “operational means” had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism.

Mr Fava further stated that the TDIP had “never had doubts” given the precision of the debriefing notes and the fact that in the course of their further work they had received confirmation from Mr Bellinger, legal advisor to Ms Rice, that the US had “never violated the sovereignty of any EU Member States or indeed any States in in the process of accession to the EU” and that everything what they had done “[had been] done by always informing and asking for cooperation and never trying to prevail over the will of the governments of the Member States” (see paragraph 361 above).

In the context of Romania’s knowledge of the CIA HVD Programme, Mr Fava moreover referred to a statement of Mr Pascu, listed in the 2007 Marty Report among the Romanian high-office holders “who knew about, authorised and [stood] accountable” for Romania’s role in the CIA HVD Programme (see paragraph 262 above). According to Mr Fava, Mr Pascu, as Minister of Defence, had been aware that the Romanian authorities had not had access to certain sites which had been under the control of the US army or intelligence services. In Mr Fava’s opinion, this statement, although later rectified by Mr Pascu, was truthful (see paragraph 363 above).

The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439).

It follows from the Court’s findings in the above cases and the CIA materials describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 48-51 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and hood and that upon arrival at his destination was moved to the “black site” under the same conditions.

The Court finds it implausible that the transportation of prisoners on land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least the minimum assistance of the host country’s authorities, if only to secure the area near and around the landed planes and provide the conditions for the secret and safe transfer of passengers. Inevitably, the Romanian personnel responsible for security arrangements, in particular the reception of the flights and overland transit, must have witnessed at least some elements of the detainees’ transfer to Detention Site Black, for instance the unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437).

Consequently, the Court concludes that the Romanian authorities who received the CIA personnel in the airport could not have been unaware that the persons brought by them to Romania were the CIA prisoners.

The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror” which were available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234).

Before analysing that material, the Court wishes to refer to President’s Bush memorandum of 7 February 2002, stating that neither alQaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraph 204-209 above), did not apply to them. The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, although including a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 31-32 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist-suspects.

The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to the detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogation and arbitrary and incommunicado detention. From January 2002 to the publication of the Washington Post report on 2 November 2005 the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ’s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 212-225 and 470-477 above).

Also, in the 2003 PACE Resolution of 26 June 2003 – of which Romania, one of the Council of Europe’s member States must have been 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 (see paragraph 216 above).

At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international and Romanian media (see paragraphs 230-243 above). In particular, between January 2002 and May 2003 the Romanian press published a number of articles concerning illtreatment of prisoners and the use of “violent interrogation techniques” against captured terrorists by the CIA (see paragraphs 239-243 above).

The Court is mindful 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 have evolved over time, from 2002 to the present day. A considerable part of evidence before the Court emerged several years after the events complained of (see paragraphs 36-59, 78-97, 251-297, 333-342 and 355-358 above; see also Al Nashiri, cited above, § 440; and Husayn (Abu Zubaydah), cited above, § 442).

Romania’s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is to say between 22 September 2003 and 5 November 2005. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant’s secret detention in Romania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose the facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 ; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442).

In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above (see paragraphs 548-582 above). Having regard to all these elements taken as a whole, the Court finds that it has been adequately demonstrated to the required standard of proof that the Romanian authorities knew that the CIA operated on Romanian territory a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities.

This finding is primarily based on compelling and crucial evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, evidence from experts.

The passages of the report about the agreement brokered between the USA and the country hosting Detention Site Black leave no doubt as to the fact as to the Romanian high-office holders’ prior acceptance of a CIA detention facility on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, referred to as a “subsidy” amounting to a redacted multiple of USD million (see paragraph 548-549 above). The experts, with reference to the reward received by the Romanian authorities, spoke of a “substantial sum, in the region of ten million United States dollars” (see paragraph 384 above) or “more than eight million dollars” (see paragraph 391 above). However, for the purposes of its ruling, the Court does not need, nor does it intend, to determine the sum that was at stake.

The Court further attaches importance to the fact that the former Head of State Mr Iliescu and his national-security advisor Mr Talpeş, admitted publicly in the press interviews that the authorities had made available to the CIA premises which, as Mr Talpeş later explained, were located in Bucharest (see paragraphs 553-554 above). While it is true that Witness Y and Witness Z in their testimonies before the prosecutor contradicted the statements of Mr Iliescu and Mr Talpeş reported in Spiegel Online, in the Court’s view their denial cannot be considered credible as being in conflict with all other relevant materials cited above (see paragraphs 548-559 above). In any event, as noted above, Witness Z confirmed that a location “for actions of combating international terrorist threats” was offered to the CIA (see paragraphs 302 and-557 above).

Furthermore, the disclosure in the 2014 US Senate Committee Report demonstrates conclusively that in the autumn of 2004, when Detention Site Black had already been operating in Romania for around one year, the national authorities were given a presentation outlining the HVD Programme by the chief of the CIA station and the US ambassador. The content of that presentation as related in the report leaves no doubt as to the fact that at the very least the Romanian authorities had learnt from the CIA of a “full range of interrogation measures” being used against their detainees in order to “overcome resistance” in the context of obtaining intelligence (see paragraphs 560-561 above).

Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various, including confidential, sources unanimously and categorically stated that Romania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country.

Senator Marty said that the authorities “must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror”. Mr J.G.S. stated that “quite clearly, categorically the Romanian authorities, at the highest level, did know of the existence of secret detention on their territory” and that “they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which the detainees were held in between their arrivals and their departures”. Mr Hammarberg stated that “though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers”. Mr Black said that it was “clear that the authorities were aware of [the purposes of the CIA aircraft landings in Romania] because, among other things, they received money for it” and that, based on the 2014 US Senate Committee Report, it was “normally common practice ... that the host country’s officials were in the know about these facilities and the purposes of them” (see paragraphs 344, 380, 384 and 391 above).

This did not mean, the experts added, that the Romanian authorities had known the details of what exactly went on inside Detention Site Black or witnessed treatment to which the CIA prisoners had been subjected in Romania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations had been exclusively the CIA’s responsibility (see paragraphs 344, 380 and 384 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443).

However, in the Court’s view, even if the Romanian authorities did not, or could not, have complete knowledge of the HVD Programme, the facts available to them, in particular those presented to them directly by their US partners, taken together with extensive and widely available information about torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist suspects in US custody which in 2002-2005 circulated in the public domain, including the Romanian press (see paragraphs 579-582 above), enabled them to conjure up a reasonably accurate image of the CIA’s activities and, more particularly, the treatment to which the CIA were likely to have subjected their prisoners in Romania.

In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. Consequently, the Romanian authorities had good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on Romanian territory.

It further observes that it is – as previously found in respect of Poland – inconceivable that the rendition aircraft could have crossed the country’s airspace, landing at and departing from its airports, that the CIA occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on its territory. Nor can it stand to reason that activities of such a character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Romanian territory without Romania’s knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State authorities (see Al Nashiri v. Poland, cited above, §§ 441-442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444).

The Court accordingly finds it established beyond reasonable doubt that:

(a) Romania knew of the nature and purposes of the CIA’s activities on its territory at the material time.

(b) Romania, by entering into an agreement with the CIA on hosting Detention Site Black, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory.

(c) Given its knowledge of the nature and purposes of the CIA’s activities on its territory and its involvement in the execution of that programme, Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.