Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 13+5 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Deprivation of liberty;Article 5 - Right to liberty and security);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);Non-pecuniary damage - award

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

The applicant was born in DATE . He is currently detained in ORG at GPE FAC in GPE .

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

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

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

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

On DATE agents of GPE and GPE seized the applicant from a house in GPE , GPE . In the course of the operation , he was shot several times in the groin , thigh and stomach , which resulted in very serious wounds . He was taken into the custody of the ORG .

At the time of his capture the applicant was considered one of the key ORG members and described by the NORP authorities as the “ third or fourth man ” in ORG , who had had a role in its every major terrorist operation , including the role of a planner of the attacks on DATE . It was also alleged that he had been PERSON senior lieutenant . As mentioned above , he was the first socalled “ high - value detainee ” ( “ the HVD ” ) detained by the ORG at the beginning of the “ war on terror ” launched by President PERSON after DATE attacks in GPE ( see paragraphs DATE and CARDINAL above ) .

The DATE ORG stated that the applicant ’s capture accelerated the development of the ORG . Paragraph CARDINAL of the Report read :

“ CARDINAL . [ REDACTED ] The capture of Senior ORG operative PERSON on DATE presented the ORG with the opportunity to obtain actionable intelligence on future threats to GPE from the most senior ORG member in GPE custody at that time . This accelerated ORG ’s development of an interrogation program [ REDACTED ] ”

Subsequently DATE for DATE from DATE on which he was seized in GPE until his transfer from the ORG ’s to ORG custody in DATE the applicant was held in incommunicado detention in secret detention facilities , the so - called “ black sites ” run by the ORG around the world .

After his arrest , the applicant was transferred to a secret ORG detention facility in GPE code - named “ Cat ’s Eye ” ( often written as CARDINAL word “ GPE ” in ORG documents ) , where he was interrogated by ORG agents and where a variety of EITs were tested on him . Mr PERSON was detained in the same facility as from DATE ( see paragraphs DATE below and GPE v. GPE , no . CARDINAL , judgment of DATE , § § DATE ) . At this site , the interrogations of both applicants were videotaped .

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

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

The DATE ORG , relying on the DATE ORG , also confirmed that the interrogation sessions were videotaped :

“ According to [ the DATE ORG report ] , the interrogation team decided at the outset to videotape PERSON sessions , primarily in order to document his medical condition . ORG OIG examined a total of CARDINAL videotapes , CARDINAL of which recorded the use of EITs . Those QUANTITY tapes included a total of CARDINAL waterboard applications , the majority of which lasted TIME . ”

It further added :

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

NORP The DATE ORG and the DATE ORG confirmed that on DATE Mr LOC was brought to the same facility , that they both were subjected to EITs , and that they both were subsequently transferred to another ORG “ black site ” .

Paragraph CARDINAL of the DATE ORG read :

“ CARDINAL . [ REDACTED ] By DATE , the ORG had PERSON and another high - value detainee , PERSON , in custody [ REDACTED ] and ORG ( OMS ) provided medical care to detainees . ”

Paragraphs CARDINAL of the same report read :

“ CARDINAL . [ REDACTED ] psychologist / interrogators [ REDACTED ] led each interrogation of PERSON and PERSON where EITs were used . The psychologist / interrogators conferred with [ REDACTED ] team members before each interrogation session . Psychological evaluations were performed by [ REDACTED ] psychologists . ...

The Government , in their written observations filed on DATE , submitted that until the criminal investigation in GPE had been terminated they reserved their right to comment on and rectify the facts of the case as supplied to them when they had been given notice of the application .

They further added that they could not address in detail the ORG ’s questions concerning the violations of Articles CARDINAL , CARDINAL , DATE and DATE of the Convention due to the fact that the criminal investigation was still pending .

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

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

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

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

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

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

The applicant , in his submissions concerning the facts of the case , the probative value of the evidence before the ORG , the burden of proof and the standard of proof as applicable in the present case and GPE ’s knowledge of the ORG stated , in particular , as follows .

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

In particular , the ORG referred to the dates given in his application and those given in the applicant ’s own account of his detention as rendered in the verbatim record of the interview with him included in the DATE ORG . In the application , it was stated that he had had been detained in GPE from DATE to CARDINAL DATE ( see paragraphs DATE above ) , whereas in the interview , he had recounted details of his ill - treatment “ regarding his detention in GPE where he [ had been ] held for DATE from DATE to DATE ” ( see paragraph CARDINAL above ) .

The applicant ’s representatives provided the following explanation .

The facts of the applicant ’s case were based on a wide range of publicly available documents , reports and investigations into the ORG that had come into the public domain only after he had been transferred from GPE on DATE .

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

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

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

The applicant maintained that numerous documents submitted to the ORG , including reports prepared by international organisations and oral evidence from the experts and the witness confirmed that he had been detained in GPE from DATE to CARDINAL DATE .

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

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

A letter from the NORP ORG to ORG confirmed that plane number NCARDINALMU landed in PERSON on DATE with CARDINAL passengers and CARDINAL crew and departed on DATE with no passengers . This account of the aircraft ’s arrival was verified by a handwritten log of landings and take - offs at FAC . The experts had explained how intense and multiple efforts had been made to disguise the true route of this flight . Information disclosed by ORG to Senator PERSON for his DATE Report showed that false flight plans had been filed for NCARDINALMU , omitting PERSON from the record of the plane ’s movements . Further evidence pointing to concerted attempts to cover up these flights was provided by Senator PERSON in his DATE Report , which noted that the filing of false flight plans had been done so that “ their actual movements would not be tracked or recorded – either ‘ ORG or after the fact – by the supranational air safety agency ORG . The system of cover - up entailed several different steps involving both NORP and NORP collaborators ” .

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

As also demonstrated by evidence given by the experts and witness to the ORG , after DATE of secret detention in a ORG black site in GPE , on DATE PERSON was then transferred from GPE , on board NCARDINALP , a plane that had at this time been flying under official “ State ” status and was already known to the ORG from its role in the GPE case ( see ORG , cited above , § § DATE and CARDINAL )

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

This evidence had been uncovered in the face of determined efforts by ORG agents and ORG organisations to stymie any attempt at getting to the truth of PERSON case .

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

In the applicant ’s submission , the nature of abuse by the ORG in the context of the extraordinary rendition operations had been a matter of public knowledge in DATE . This had been documented by the applicant from both NORP and international sources disclosing widespread abuse of terrorist suspects in the custody of the GPE authorities at the material time .

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

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

The ORG prison could not have operated on NORP territory without the support and assistance of ORG .

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

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

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

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

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

In particular , from DATE through DATE , the GPE had transferred CARDINAL foreign nationals to FAC in LOC , GPE , with reports from the outset of ill - treatment during transfers , and detention without charge or trial or access to the courts , lawyers or relatives . By DATE , there had been CARDINAL detainees held there .

Cases of arbitrary detention and secret transfer had continued to emerge during DATE . In DATE , ORG had reported that , in addition to the case of PERSON , the GPE authorities had transferred CARDINAL of people to countries where they could be subjected to interrogation tactics , including torture .

In DATE ORG had reported on a secret ORG facility at GPE , GPE and the ORG ’s use of “ stress and duress ” techniques , including sleep deprivation , stress positions and hooding , and the use of renditions by the agency .

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

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

By DATE ORG could reasonably have found credible the GPE ’s assurances that it had been committed to human rights and the rule of law in the counter - terrorism detention context , including the prohibition of torture and other ill - treatment .

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

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

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

The ORG 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 GPE , cited above , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALXIII ( extracts ) ; GPE and Others v. GPE , nos . CARDINAL , CARDINAL/CARDINAL , PERSON , DATE and CARDINAL , § DATE , DATE ; and ORG , cited above , § CARDINAL ) .

In assessing evidence , the ORG has adopted the standard of proof “ beyond reasonable doubt ” . However , it has never been its purpose to borrow the approach of the national legal systems that use that standard . Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the LAW . The specificity of its task under LAW to ensure the observance by GPE 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 ORG , 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 ORG ’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 . ORG is also attentive to the seriousness that attaches to a ruling that a ORG has violated fundamental rights ( see , among other examples , GPE v. GPE , DATE , § CARDINAL , Series A no . CARDINAL ; PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL and CARDINAL , § CARDINAL , ORG CARDINALVII ; ORG v. GPE [ ORG ] , no . CARDINAL , § DATE , CARDINAL DATE ; and ORG , cited above , § CARDINAL ) .

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 ORG 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 PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and GPE , § CARDINAL , ECHR DATE , with further references ; PERSON and Others v. GPE , no . ORG , LAW , DATE ; and ORG and Others v. GPE , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE and CARDINAL , § CARDINAL , DATE )

Furthermore , the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio . According to the ORG ’s case - law under LAW and CARDINAL 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 GPE , cited above , § CARDINAL ; PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINAL-IV ; PERSON GPE [ ORG ] , no . DATE , § CARDINAL , ORG CARDINAL-VII ; and GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL ( extracts ) .

In the absence of such explanation the ORG can draw inferences which may be unfavourable for the respondent Government ( see PERSON , ibid . ) .

The ORG observes at the outset that , in contrast to many other previous cases before it involving complaints about torture , ill - treatment in custody or unlawful detention , in the present case it is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant ( for example , compare and contrast with PERSON , § § CARDINAL - CARDINAL and CARDINAL - CARDINAL ; ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALV ; PERSON GPE [ ORG ] , no . CARDINAL , § § DATE , ORG DATE ; and ORG and Others v. GPE and GPE [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL ) .

As stated in the application , since DATE , when the applicant was captured by the ORG in GPE , he has continually been in the custody of the GPE authorities , initially in the hands of the ORG in undisclosed detention at various black sites and then , as confirmed by President PERSON on DATE , in the custody of GPE military authorities in ORG ( see paragraphs CARDINAL and CARDINAL - CARDINAL above ) .

NORP The regime applied to High - Value Detainees in ORG custody such as the applicant is described in detail in the ORG documents and also , on the basis , inter alia , of the applicant ’s own account , in the DATE ORG . It “ included transfers of detainees to multiple locations , maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention ” . The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation . The detainees were usually unaware of their exact location ( see paragraphs CARDINAL , CARDINAL - CARDINAL and CARDINAL above ) .

It is submitted that since DATE the applicant had not had contact with persons from the outside world , save the ORG team in DATE and , following his transfer to the jurisdiction of military commission in FAC , his GPE counsel with top - secret security clearance . All his communication with his counsel has been presumptively classified . In fact , he is subjected to a practical ban on his contact with the outside world , apart from mail contact with his family ( see paragraphs CARDINAL , CARDINAL and CARDINAL above ) .

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

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

In consequence , the ORG ’s establishment of the facts is to a great extent based on circumstantial evidence , including a large amount of evidence obtained through the international inquiries , considerably redacted documents released by the ORG , other public sources and evidence from the experts and the witness .

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

Those documents also confirm that by DATE the ORG had the applicant and Mr PERSON , both referred to as “ High - Value Detainees ” , in its custody and that they were interrogated at a ORG black site with the use of the EITs and that their interrogations were videotaped . The applicant was first to have been detained and interrogated there , PERSON Al Nashiri was brought to that facility as a “ second prisoner ” on DATE . The interrogation of Mr LOC “ continued through DATE ” ( see paragraphs CARDINAL above ) .

Those documents also attest to the fact that as from DATE the applicant and Mr PERSON were held in the same detention facility , that they were interrogated by apparently the same team of “ psychologist / interrogators ” , that their interrogations were videotaped and that the series of Mr PERSON enhanced interrogations , including the so - called “ waterboarding ” , “ continued through DATE ” ( see also PERSON , cited above , § CARDINAL ) .

The ORG material further confirm – in the cables of CARDINAL and DATE – that this specific detention facility was closed following an inventory of the videotapes recording the enhanced interrogations of Mr GPE and Mr PERSON ’s . The inventory was carried out on DATE . No ORG cables from that location were sent to the ORG after DATE ( see paragraphs CARDINAL above ) . The DATE ORG states that , after the enhanced interrogations of Mr PERSON which , as noted above , continued at that black site until DATE , both he and Mr PERSON were moved to “ another ORG black site ” . The same fact is mentioned in the DATE ORG ( see paragraph CARDINAL above ) .

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

In the light of the above first - hand ORG documentary evidence and clear and convincing expert evidence , the ORG finds established beyond reasonable doubt that the applicant , following his capture on DATE , was detained in the ORG detention facility in GPE from an unknown date following his capture to DATE , that Mr Al GPE was also held in the same facility from DATE to DATE and that they were both moved together to “ another ORG black site ” on DATE ( see also PERSON , cited above , § MONEY ) .

It is alleged that on DATE the applicant , together with Mr PERSON , had been transferred by the ORG under the ORG from GPE to GPE on a ORG contracted aircraft , registered as NCARDINALMU with ORG . The flight flew on DATE from GPE via GPE and landed at FAC on DATE . The applicant was then secretly detained in the NORP intelligence training base at FAC ( see paragraphs CARDINAL above ) .

It is further alleged that during his undisclosed detention in GPE the applicant was subjected to various forms of ill - treatment and abuse and deprived of any contact with his family . He was held in GPE until DATE . On that date he was transferred by means of extraordinary rendition from NORP territory , on a ORG CARDINAL registered as NCARDINALP , to other ORG secret detention facilities elsewhere ( see paragraphs CARDINAL - CARDINAL above ) .

The ORG notes that the fact that after DATE the applicant and Mr PERSON were transferred together to the same detention facility is conclusively confirmed in paragraph CARDINAL of the DATE ORG . The paragraph states that the same “ interrogation team ” was “ to interrogate PERSON and debrief PERSON ” and that “ the interrogation team continued EITs on LOC for DATE in DATE ” ( see paragraph CARDINAL above ) .

As regards the aircraft indicated by the applicant , the ORG observes that there is abundant evidence identifying them as rendition planes used by the ORG for the transportation of detainees under the ORG . That evidence includes data from multiple sources , such as flight plan messages by ORG and information provided by ORG and ORG ( “ ORG ” ) , which was released and subsequently analysed in depth in the course of the international inquiries concerning the ORG secret detentions and renditions ( see paragraphs CARDINAL - CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL , CARDINAL and CARDINAL above ) .

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

( CARDINAL ) the aircraft NCARDINALMU , a Gulfstream jet with capacity for CARDINAL passengers , flew on DATE from GPE via GPE to GPE and landed there on DATE at CARDINAL . ORG official documents recorded that on arrival there were CARDINAL passengers and CARDINAL crew and that the plane departed from PERSON on DATE at CARDINAL:CARDINAL with no passengers and CARDINAL crew ;

( CARDINAL ) the aircraft NCARDINALP , a ORG CARDINAL , landed in PERSON en route from GPE , GPE on DATE . TIME of the arrival and landing were recorded by ORG as ORG and PERSON respectively . A hand - written log of take - offs and landings at FAC recorded that NCARDINALP arrived in PERSON on DATE at TIME ( local time ) and departed at TIME ( local time ) . ORG official documents recorded that on arrival there were no passengers and CARDINAL crew and on departure there were CARDINAL passengers and CARDINAL crew .

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

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

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

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

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

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

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

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

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

In that regard , the ORG would also note that a strikingly similar account of his transfers in ORG custody was given by the applicant in GPE ( see PERSON , cited above , § CARDINAL ) .

As regards the applicant ’s actual presence in GPE , the ORG takes due note of the fact that there is no direct evidence that it was the applicant who was transported on board the NCARDINALMU flight from GPE to PERSON on DATE or that he was then taken from PERSON elsewhere on board NCARDINALP on DATE .

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

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

In view of the foregoing , in order to ascertain whether or not it can be concluded that the applicant was detained in GPE at the relevant time , the ORG has taken into account all the facts that have already been found established beyond reasonable doubt ( see paragraphs CARDINAL - CARDINAL above ) and analysed other material in its possession , including , in particular , the expert evidence reconstructing the chronology of rendition and detention of the applicant and Mr PERSON in DATE ( see paragraphs CARDINAL - CARDINAL above ) .

It has already been established that on DATE the applicant was transferred from the black site in GPE together with Mr LOC and that they were subsequently detained in the same ORG detention facility ( see paragraph CARDINAL above ) The date of the transfer coincides exactly with the path followed by the NCARDINALMU , which took off from GPE on DATE and then , after the stopover in GPE , arrived in PERSON on DATE ( see paragraphs CARDINAL and CARDINAL above ) .

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

The ORG notes that ORG have offered no explanation for the nature of , the reasons for , or the purposes of the landing of the NCARDINALMU on their territory on DATE , a plane which in all the relevant reliable and thorough international inquiries was conclusively identified as the rendition aircraft used for transportation of High - Value Detainees in ORG custody at the material time ( see CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL , CARDINAL , CARDINAL and CARDINAL above ) .

Nor have they explained the reasons for the subsequent series of landings of the ORG rendition aircraft ( see paragraph CARDINAL above ) . The landing of NCARDINALMU on DATE was followed by CARDINAL further landings of the NCARDINALP ( the “ Guantánamo express ” ) , the most notorious ORG rendition plane . CARDINAL of those landings took place on DATE the date indicated by Mr PERSON as that of his transfer from GPE and conclusively confirmed by the experts as that on which he had been transferred out of GPE ( see paragraph CARDINAL above ) . The series ended with the landing of NCARDINALP on DATE the date indicated by the applicant for his transfer from GPE , confirmed by the experts as the date of his transfer out of GPE and identified by them as the date on which the black site “ Quartz ” in GPE had been closed ( see paragraph CARDINAL above and also PERSON , cited above , § MONEY ) . Indeed , no other ORG - associated aircraft appeared in PERSON after that date ( see paragraph PERSON above ) .

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

Consequently , on the basis of unrebutted facts and in the light of all the relevant documentary material in its possession and the coherent , clear and categorical expert evidence explaining in detail the chronology of the events occurring in the applicant ’s case DATE and DATE , the ORG finds that the applicant ’s allegations to the effect that during that time he was detained in GPE are sufficiently convincing .

Lastly , as regards the applicant ’s treatment in ORG custody over the period under consideration , in contrast to Mr PERSON whose treatment in ORG custody in the relevant period is described at least partly in the ORG documents ( see paragraph CARDINAL above and PERSON , cited above , § § CARDINAL ) , the unredacted sections of those documents give very sparse information about the applicant ’s situation . The DATE ORG merely states that in DATE the purpose of the interrogation team assigned to the black site in which the applicant was detained was to “ interrogate PERSON and debrief PERSON “ ( see paragraph CARDINAL above ) .

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

The DATE ORG , with reference to the applicant ’s detention DATE and DATE , that is , during the period which partly overlaps with his detention in GPE , seems to confirm that the applicant at some point became “ compliant ” . It states that after the applicant was subjected to the waterboard “ CARDINAL times during DATE ” and during the period DATE use of the waterboard and DATE he “ provided information ” . In that respect , the document speaks of the applicant ’s “ increased production ” , which appears to have meant that the aims of the enhanced interrogation had been achieved , although the authors of the report expressed doubts as to whether his “ compliance ” should be attributed to the use of waterboard or the length of his – undisclosed – detention ( see paragraph CARDINAL above ) . The DATE ORG also refers to the fact that at some point the use of the waterboard on the applicant was discontinued ( see paragraph CARDINAL above ) .

In the ORG ’s view , the above elements confirm that the use of this particular interrogation technique stopped but this left open the application of other EITs on the applicant throughout his undisclosed detention , including in the period DATE and DATE in GPE .

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

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

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

( CARDINAL ) on DATE the applicant , together with Mr PERSON arrived in PERSON on board the ORG rendition aircraft NCARDINALMU ;

( CARDINAL ) from DATE to CARDINAL DATE the applicant was detained in the ORG detention facility in GPE identified as having the codename “ Quartz ” and located in Stare Kiejkuty ;

( CARDINAL ) during his detention in GPE under the ORG he was “ debriefed ” by the ORG interrogation team and subjected to the standard procedures and treatment routinely applied to High - Value Detainees in the ORG custody , as defined in the relevant ORG documents ;

( CARDINAL ) NORP on DATE the applicant was transferred by the ORG from GPE to another ORG secret detention facility elsewhere on board the rendition aircraft ORG

Several sources of evidence obtained by the ORG confirm that the NORP authorities followed a special procedure for the landing of ORG rendition flights in PERSON .

That procedure was related before the ORG by an eye - witness , a certain PERSON , who had been the manager of PERSON airport at the material time ( see paragraphs CARDINAL - CARDINAL above ) . On the basis of her detailed account and statements from other persons , including the former director of GPE airport and the former Chairman of ORG of that airport , the summary description of that procedure was included in ORG ( see paragraph CARDINAL above ) . Furthermore , the DATE ORG contained a compilation of testimonies obtained from confidential sources among PERSON airport employees , civil servants , security guards , and ORG and military intelligence officials , who had given an account of what had happened at the time immediately following the landing of the ORG - associated aircraft landed in PERSON ( see paragraph CARDINAL above ) .

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

CARDINAL ) NORP all the landings were preceded by a telephone call to PERSON airport from ORG of ORG or a military intelligence official , informing the authorities of the airport of an arriving “ NORP aircraft ” ;

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

CARDINAL ) NORP prior to the landings CARDINAL high - ranking ORG officers always appeared in the airport ;

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

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

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

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

CARDINAL) the perimeter and grounds of the airport were secured by military officers and ORG ;

CARDINAL ) the aircraft touched down in PERSON and taxied to a halt at the far end of the runway , QUANTITY ( and out of visible range ) from the QUANTITY terminal control tower ; it always parked with the doors facing towards the wood ;

CARDINAL ) the passengers never entered the airport ;

CARDINAL ) ORG approached the aircraft first and then drove away ;

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

CARDINAL ) after ORG drove away , the vans with tinted windows drove up to the aircraft and then drove away ;

CARDINAL ) the planes left shortly afterwards ;

CARDINAL ) the landing fees were paid to the airport in cash by a LOC ( or a person who spoke NORP very well ) DATE and were considerably higher – several times more – than those normally applicable ( QUANTITY ) , including an amount for “ non - standard handling ” .

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

As explained in the DATE ORG and by Senator PERSON and Mr GPE orally before the Court , Jeppesen , a usual provider of services for the ORG for rendition flights ( see also paragraphs CARDINAL above ) , filed multiple false – “ dummy ” – flight plans for those flights , including the landings in GPE . Those plans often featured an airport of departure and/or destination that the aircraft never intended to visit . In CARDINAL out of CARDINAL instances of the ORG aircraft landings in PERSON , including the landing of NCARDINALMU on DATE with the applicant and Mr PERSON on board ( see CARDINAL and CARDINAL above ) , flight plans were disguised , false plans were filed and ORG navigated the aircraft into PERSON without a valid flight plan ( see paragraphs CARDINAL , CARDINAL and CARDINAL above ) .

A detailed analysis of the rendition circuit of the flight NCARDINALP – on which , as established in GPE , Mr PERSON was transferred out of GPE on DATE ( see also paragraph CARDINAL above and PERSON , cited above , § MONEY ) , is included in ORG . That report explains how the aircraft made the entire circuit under various forms of exemption and special status , which indicated that the flights were planned and executed with the full collaboration of the GPE authorities and the “ host ” States through which the NCARDINALP travelled . Such exemptions are only granted when specifically authorised by the national authority whose territory is being used ( see paragraph CARDINAL above ) .

On DATE ORG navigated the NCARDINALP into GPE , despite the fact that all relevant flight plans named GPE as the airport of destination . The fact that ORG accepted ORG ’s flight plan naming GPE but navigated the plane to PERSON demonstrated that the NORP authorities did not require it to comply with international aviation regulations and that they knowingly issued a false landing permit . In consequence , the rest of the aviation monitoring community , including ORG , mistakenly recorded the aircraft ’s stopover in GPE ( see paragraphs CARDINAL , CARDINAL and CARDINAL above ) .

ORG also gave a detailed analysis of the rendition circuit of the flight PERSON DATE on which , as established above ( see paragraph CARDINAL and CARDINAL above ) the applicant was taken out of GPE on DATE . While it does not appear that on this occasion ORG filed any “ dummy ” flight plans for the flight from GPE to GPE , it did , as in case of NCARDINALP ’s flight circuit in DATE , invoke a special status designation . As stated in that report , such “ special status exemptions in their invocation alone demonstrate a collaborative planning on the part of the states whose territory or airspace is being traversed , because they are only granted when specifically authorised by the national authority whose

Several sources of evidence before the ORG have suggested the existence of a special bilateral agreement between GPE and the GPE on the setting up and running of a secret prison in GPE .

NORP The DATE PERSON , based on evidence from confidential sources , states that the ORG brokered an “ operating agreement ” with GPE to hold its High - Value Detainees in a secret detention facility and that GPE agreed to “ provide the LOC in which [ that facility was ] established , the highest degrees of physical security and secrecy , and steadfast guarantees of non - interference ” ( see paragraphs CARDINAL–CARDINAL above ) .

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

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

Mr GPE , when heard by the Court , said that whilst in the course of ORG they had not seen the classified documents in question , they had been made aware of the existence of authorising agreements , which granted extraordinary protections and permissions to the ORG in its execution of the rendition operations ( see paragraph CARDINAL above ) .

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

The DATE EP Resolution “ note[d ] with concern ” that the NORP authorities’ official reply of DATE to the to the Secretary General of ORG , “ indicate[d ] the existence of secret cooperation agreements initialled by the CARDINAL GPE secret services’ themselves , which GPE ] the activities of foreign secret services from the jurisdiction of the NORP judicial bodies ” ( see paragraph CARDINAL above ) .

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

It considers that it is inconceivable that the rendition aircraft crossed NORP airspace , landed in and departed from a NORP airport and that the ORG occupied the LOC in FAC without some kind of pre - existing arrangement enabling the ORG operation in GPE to be first prepared and then executed .

The ORG considers that the respondent ORG ’s lack of cooperation in the course of the international inquiries into the ORG rendition operations in LOC undertaken in DATE is an element that is relevant for its assessment of GPE ’s alleged knowledge of , and complicity in , the ORG rendition operations .

To begin with , in their response dated DATE to the Secretary General of ORG questions in the procedure launched under LAW , the authorities “ fully denied ” the allegations of “ the alleged existence in GPE of secret detention centres and related over - flights ( see paragraph CARDINAL above ; the relevant letter is also mentioned in paragraph CARDINAL above ) . In that regard , they relied on the findings of “ ORG internal inquiry ” . It is not clear what kind of “ internal inquiry ” was carried out and whether the authorities in fact meant the ORG inquiry conducted in DATE ( see paragraph CARDINAL above ) but , be that as it may , they could not have been unaware of the ORG operations in the country in DATE ( see paragraphs CARDINAL - CARDINAL above ) .

A similar obstructive attitude was displayed during ORG . In the DATE Marty Report it was noted that “ the NORP authorities ha[d ] been unable , despite repeated requests , to provide [ the rapporteur ] with information from their own national aviation records to confirm any ORG - connected flights into GPE ” ( see paragraph CARDINAL above ) . The DATE ORG noted that “ in DATE of correspondence , GPE ha[d ] failed to furnish [ the ] inquiry with any data from its own records confirming ORG - connected flights into its airspace or airports ” ( see paragraph CARDINAL above ) .

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

The conduct adopted by the authorities in respect to ORG was no different . PERSON explicitly stated that the NORP authorities cooperation with the GPE delegation had been “ regrettably poor ” , that the delegation had not been able to meet any representatives of ORG and that the ORG had been “ reluctant to offer full cooperation ... and receive [ the ] delegation at an appropriate political level ” . It was also noted that there had been confusion about flight registers of ORG planes transiting through GPE and contradictory statements about the existence of flight logs ( see paragraph CARDINAL above ) . The same observations were made in the DATE EP Resolution ( see paragraph CARDINAL above ) .

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

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

Mr PERSON , in his oral testimony described in detail a document – the records or “ the debriefing ” of the informal transatlantic meeting of ORG and ORG foreign ministers with the GPE Secretary of ORG PERSON , which had taken place on DATE . The meeting was convened in connection with recent international media reports concerning the ORG secret detentions and rendition , naming NORP countries that had allegedly had ORG black sites on their territory . The debriefing , obtained by the ORG from a credible confidential source in the offices of ORG , confirmed that the member GPE had had knowledge of the ORG rendition programme and there had been an “ animated discussion ” on the practices applied by the ORG . While PERSON could not recall whether there had been any intervention by ORG at that meeting , he said that it had appeared from PERSON statement “ we all know about these techniques ” that there had been an attempt on the GPE ’s part to share “ the weight of accusations ” ( see paragraph CARDINAL above ) .

The ORG further notes that PERSON also referred to the meeting held in the context of ORG with the former NORP head of the security service who , “ although ... with great diplomacy ” , had confirmed that the ORG officials often landed in PERSON and that the NORP intelligence and the ORG had had “ frequent relations of cooperation ... consisting in sharing certain practices and objectives ” ( see paragraphs CARDINAL and CARDINAL above ) .

NORP Former President of GPE , PERSON , in his press interview given on DATE , also referred to the “ intelligence cooperation ” with the ORG and stated that ” the decision to cooperate with the ORG carried the risk that the NORP would use inadmissible methods ” ( see paragraph CARDINAL above ) .

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

In particular , the ORG finds it inconceivable they would not have seen or , as described by PERSON , “ witnessed ... the unloading of bound and shackled detainees from aircraft ” ( see paragraph CARDINAL above ) .

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

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

Furthermore , there were , as pointed out by CARDINAL of the experts ( see paragraph CARDINAL above ) , other aspects of the ORG activity in GPE that were extraordinary from the perspective of the normal operation of an airport like PERSON .

For instance , the landing of the ORG CARDINAL ( NCARDINALP on which the applicant was transferred from GPE ; see CARDINAL and CARDINAL above ) on DATE at PERSON took place despite the fact that the airport did not have the necessary technical conditions for receiving such a large aircraft , in particular the facilities to refuel it , and the fact that the airport fire brigade was not adequately equipped for that purpose ( see paragraphs CARDINAL - CARDINAL and CARDINAL above ) . In the view of PERSON , the airport manager at the relevant time , “ there must have been some very pressing reasons ” for allowing that landing ( see paragraph CARDINAL above ) .

On another occasion in DATE , notwithstanding the severe weather conditions and the fact that snow had not been cleared at the airport for DATE , the airport management were not in a position to refuse the ORG aircraft ’s landing and had to clear the runway because “ if the aircraft concerned did not land , ‘ heads would ORG ” ( see paragraph CARDINAL above ) .

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

Lastly , the ORG attaches importance to the fact that already DATE and DATE ill - treatment and abuse to which captured terrorist suspects were subjected in GPE custody at different places , including LOC or GPE base in GPE was largely in the public domain through numerous statements or reports of international organisations ( see paragraphs CARDINAL–CARDINAL above and LOC , cited above , § § DATE above ) .

At the material time that topic was also present in the international and NORP media , which paid considerable attention to the situation of ORG prisoners in GPE custody ( see paragraphs CARDINAL–CARDINAL above ) .

The ORG has taken due note of the fact that knowledge of the ORG rendition and secret detention operations and the scale of abuse to which High - Value Detainees were subjected in ORG custody evolved over time ( see paragraphs DATE , DATE , CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL above ) . In particular , the ORG ’s various secret or top secret documents , including the DATE ORG , the ORG Background Paper and the DATE ORG DATE which , in the present case and in LOC , are among important items of documentary evidence relevant for the establishment of the facts relating to both applicants’ rendition , secret detention and treatment by the GPE authorities DATE were disclosed to the public , in a heavily redacted form , as late as DATE ( see paragraphs CARDINAL , DATE and DATE above ) . The DATE ORG , including the applicant ’s account of the treatment and material conditions of detention to which he was subjected under the ORG , was leaked into the public domain in DATE ( see paragraph CARDINAL above ) . The reports following ORG and ORG emerged earlier , in DATE ( see paragraphs QUANTITY and DATE ) , but this was DATE after the events complained of . As stated by Senator PERSON , even “ the picture provided by the DATE [ ORG is still very much a partial CARDINAL ” , having regard to the subsequent developments , such as the publication of the ORG materials and the availability of statements from detainees ( see paragraph CARDINAL above ) .

As already stated above ( see paragraphs CARDINAL - CARDINAL above ) , the ORG has relied extensively on those sources of evidence in its retrospective reconstruction and establishment of the facts concerning the applicant ’s transfers to and from GPE and his secret detention and ill - treatment by the ORG in GPE . However , the NORP ORG ’s knowledge of and complicity in the HVD Programme must be established with reference to the elements that it knew or ought to have known at or closely around the relevant time , that is , DATE and DATE in respect of the applicant and DATE and DATE in respect of Mr Al GPE .

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

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

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

Notwithstanding the foregoing proviso as to the lack of direct knowledge of the treatment to which the applicant was subjected in GPE , as noted above , already DATE and DATE numerous public sources were consistently reporting ill - treatment and abuse to which captured terrorist suspects were subjected in GPE custody in different places . Moreover , in the DATE ORG adopted in DATE of which GPE , as any other ORG was aware DATE ORG of ORG was “ deeply concerned at the conditions of detention ” of captured “ unlawful combatants ” held in the custody of the GPE authorities . All these sources reported practices resorted to or tolerated by the GPE authorities that were manifestly contrary to the principles of the Convention ( see paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL above ) . Consequently , there were good reasons to believe that a person in GPE custody under the HVD Programme could be exposed to a serious risk of treatment contrary to those principles ( see also GPE , cited above , § CARDINAL ) .

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

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

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

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


CASE OF AXEL SPRINGER AG v. GERMANY (No. 2)

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

ORG The applicant company is a public limited company with its registered office in GPE . Among other activities , it is the publisher of the mass - circulation DATE newspaper ORG .

On TIME CARDINAL DATE , after his party ( ORG ( ORG ) ) had suffered a heavy election defeat in the Land of GPE , Federal Chancellor PERSON , who had been in power as head of ORG since DATE , announced that parliamentary elections would be brought forward to DATE from their scheduled date in DATE . Because the early elections could not be held until the GPE ( ORG ) had been dissolved – a process which could only take place by order of Federal President of GPE after a motion of confidence in the Federal Chancellor had been defeated – Chancellor PERSON called a vote of confidence on DATE and lost it , with CARDINAL of the CARDINAL members of parliament from the parties making up his government abstaining as requested by the Chancellor . On DATE Federal President PERSON dissolved the GPE . This means of securing the dissolution of ORG prompted discussions in public and among members of parliament , and was also the subject of appeals to ORG , which , by a majority , dismissed them and ruled that the disputed procedure was in conformity with LAW ( see in particular the decision of DATE , nos . CARDINAL BvE CARDINAL/CARDINAL and CARDINAL/CARDINAL ) .

The elections were held on DATE . None of the main political parties emerged victorious with a sufficient majority , but the parties forming the outgoing PERSON government ( the ORG and the NORP ) lost their majority . Subsequently , the conservative parties ( the ORG and ORG ) and the ORG agreed to form a coalition headed by PERSON , the candidate for the ORG and ORG . On DATE Mr Schröder left office and PERSON was elected as the new Federal Chancellor .

On DATE , at a ceremony to mark the start of work on the LOC gas pipeline ( “ NORP ” ) , it was announced that Mr PERSON had been appointed chairman of the supervisory board of the NORP - Russian consortium LOC ( Konsortium Nordeuropäische Gaspipeline ) . The aim of the consortium , which had its registered office in GPE and was controlled by the NORP company ORG , was to build a gas pipeline to supply NORP gas to western LOC . The agreement on the principle of building the pipeline had been signed on DATE by the NORP company ORG and ORG in the presence of PERSON and the NORP President PERSON . The signing of the contract itself , initially scheduled for DATE at an energy summit in GPE , had taken place on DATE again in the presence of PERSON and Mr Putin – ten days before the early elections .

On DATE of the announcement , a member of ORG ’s editorial staff attempted to contact the deputy spokesperson for the government , PERSON ( who had continued to occupy this post under the new government ) , for information on the subject but received no reply . The following day he made a further attempt , which was likewise unsuccessful . Following a third request DATE , the deputy spokesperson informed the journalist that PERSON had nothing to add to his statement of DATE in which he had indicated his willingness to accept an offer from the consortium partners to take up a position on its supervisory board .

On DATE a ORG journalist called the vice - chairman of the parliamentary group of ORG ( ORG ) , PERSON .

NORP In a sworn statement of DATE the journalist affirmed that PERSON had wondered whether Chancellor PERSON had already spoken to the NORP about a lucrative position before calling the early elections in DATE . When asked by the journalist what he meant , Mr PERSON had replied : “ The early election gambit must now be seen in a new light ” . The journalist had then asked PERSON whether he meant that PERSON might have triggered the fresh elections on the basis of promises from GPE . Mr PERSON had replied : “ That ’s a question we need to ask ” . He had added that , from his own experience in politics , a matter involving such a major change in personal activity must have been settled well before DATE He had then asked CARDINAL further questions : “ Did PERSON want to resign because he had been offered lucrative positions ? Did he have personal motives in deciding to call early elections in a politically desperate situation ? ”

According to the statement , PERSON had agreed for his comments to be quoted . On DATE the journalist called Mr PERSON again and asked him whether , in the light of the warning ( ORG ) which Mr PERSON had issued to PERSON , he still stood by his comments ; Mr PERSON confirmed that he did .

In its edition of CARDINAL DATE PERSON published a front - page article with the headline : “ What does he really earn from the pipeline project ? PERSON must reveal his NORP salary . ” On page CARDINAL of the newspaper , under the headline “ NORP salary – will PERSON earn MONEY a year ? ” the article read as follows :

“ The ex - Chancellor and NORP gas : there is growing outrage among all political parties . For PERSON is to head the supervisory board of a business seeking to build a MONEY gas pipeline through LOC from GPE to GPE . While he was Chancellor , he pushed this project through despite considerable resistance .

ORG Prime Minister PERSON ( ORG ) called on PERSON to act , either by declining the chairmanship of the LOC consortium ’s supervisory board , or by revealing all his income from his NORP job !

PERSON told PERSON : ‘ Through his behaviour PERSON has seriously damaged the reputation of politics in GPE . PERSON must decline the job of supervisory board chairman , because otherwise this may create the impression of being a reward for promoting the pipeline.’

The politician added : ‘ If PERSON nevertheless accepts his appointment to the supervisory board , he must disclose what he is getting paid . This is a requirement under the regulations on disclosure [ of income ] , which were toughened up by the PERSON government DATE . The fact that the pipeline company has its headquarters in GPE is no reason for the former Federal Chancellor not to abide by these rules.’

Insiders reckon that PERSON is pocketing MONEY a year for his gas job . After all , the NORP are not stingy . For example , CARDINAL supervisory board members of the NORP company ORG , a ORG subsidiary , have received payments totalling MONEY .

The fact that PERSON is walking into the joint NORP - Russian venture so soon after leaving the Government has been met with incredulity across all political parties . CARDINAL particularly delicate matter is that on DATE the NORP energy giant ORG and the NORP [ company ] ORG signed a memorandum in GPE for the joint exploitation of a NORP gas field , in the presence of PERSON and NORP head of ORG PERSON . Following the signing , the CARDINAL government leaders stayed up late drinking red wine together .

Was PERSON ’s recruitment to the multinational gas company already being discussed at that time DATE before he called the early elections ?

The vice - chairman of the ORG parliamentary group , PERSON , said : ‘ That ’s a question we need to ask!’ PERSON has a monstrous suspicion : ‘ Did PERSON want to resign because he had been offered lucrative positions ? Did he have personal motives in deciding to call early elections in a politically desperate situation?’ The early election gambit should ‘ now be seen in a new light’ , he added .

PERSON , chairman of the ORG parliamentary group in the GPE , said : ‘ You do n’t make a deal like that TIME , and PERSON was still Chancellor DATE . He should now lay his cards on the table and say whether these agreements had already been reached while he was in office.’

The vice - chairman of the ORG parliamentary group , PERSON , added : ‘ PERSON should finally say what ’s going on ( was PERSON ist)!’

The economic affairs spokesperson for the NORP parliamentary group , PERSON , said : ‘ PERSON must now ensure maximum transparency and disclose his contract and remuneration.’ ”

The article on page CARDINAL was accompanied by a photograph of Mr PERSON wearing a chapka on his head . Further down there was a short article stating that the NORP consortium was headed by a former major from ORG of the former GPE , who was a friend of PERSON .

Mr PERSON ’s appointment as chairman of the supervisory board gave rise to public debate and was reported in the media and discussed in ORG , in particular on DATE .

An article published in ORG ( no . CARDINAL ) on DATE stated that a journalist from the magazine had contacted the Schröder government in DATE to find out whether indications from GPE that ORG was preparing a post for Mr PERSON were true . The government spokesperson had said that this was absurd and denied the existence of any such offer .

In DATE it emerged that in DATE , while government business was still being conducted on an interim basis by the outgoing government pending PERSON election as Chancellor , guarantees had been signed whereby the NORP government agreed to underwrite a loan of MONEY from CARDINAL NORP banks in favour of ORG and part of the pipeline . Mr PERSON indicated that he had had no knowledge of the signing of the guarantees and ORG stated that it had not made use of them .

On an unspecified date in DATE PERSON sought an injunction in ORG prohibiting any further publication of the following passage of the article :

“ PERSON has a monstrous suspicion : ‘ Did PERSON want to resign because he had been offered lucrative positions ? Did he have personal motives in deciding to call early elections in a politically desperate situation?’ ”

In a judgment of DATE ORG granted the injunction . It held in particular that the quotation in issue was neither a factual allegation nor a value judgment but mere speculation in the form of questions , the legality of which was a matter for assessment in the light of the principles established for reporting on suspicions ( GPE ) . According to these criteria , the courts had to assess whether the impugned report concerned a matter of public interest , whether there was a sufficient factual basis for the speculation , whether the newspaper had been sufficiently diligent in carrying out its research and in deciding to publish the report , and whether the nature of the report made it sufficiently clear that what was being reported was speculation and that the factual reality might be different . The regional court held that the publication of the passage in issue in the case before it did not satisfy these criteria in so far as the applicant company had not sought to obtain Mr PERSON ’s views on the matter beforehand and had not established a sufficient factual basis to justify publishing the passage in question .

In a judgment of DATE ORG upheld ORG judgment . It held that the publication of the offending quotation breached LAW , in conjunction with LAW ( by analogy ) of LAW and the right to protection of personality rights ( Allgemeines Persönlichkeitsrecht – see “ Relevant domestic law and practice ” ) , because it suggested to readers of the newspaper that Chancellor PERSON had taken the decision to hold early parliamentary elections on the basis of private considerations motivated by self - interest . ORG found it unnecessary to determine whether the quotation in issue amounted to a genuine ( open ) question or a factual allegation in the form of a question , since the applicant company had conveyed a suspicion which could also have been formulated as a question . ORG had thus been correct in applying the criteria for reporting on suspicions .

The Court of Appeal observed that the report published by the applicant company did not merely reproduce what Mr PERSON had said , but the quotation had formed part of a significantly longer article intended to steer readers in a certain direction . It further pointed out that the article had begun by saying that Mr PERSON and the NORP President PERSON had met in DATE , and had then asked whether Chancellor PERSON ’s activities on behalf of ORG had been discussed on that occasion . In the court ’s view , this encouraged readers to believe that it was possible that an agreement had been reached for PERSON to take up a private - sector post and that he had used the election defeat in GPE as a pretext for triggering a series of events that would lead to his leaving office as Chancellor . It added that this line of thinking was borne out by the CARDINAL questions in the quotation in issue and the use of the phrases “ early election gambit ” and “ must now be seen in a new light ” .

The Court of Appeal observed that the principles for reporting on suspicions applied to the case before it , although the report in question had not contained any suspicion that Mr PERSON had committed a criminal offence . What was decisive in the court ’s view was that the applicant company had conveyed a suspicion entailing a serious and damaging accusation against the former Chancellor . The article had suggested that he had misled the general public and the electorate about the true reasons for his decision to call early elections and that he had prioritised his own financial interests over the common good , which he was required to serve as Federal Chancellor . ORG considered that this was one of the most serious accusations that could be levelled against a person who had formerly held one of the highest ORG offices . In its view , the quotation in issue confirmed the seriousness of the accusation by using the phrase “ monstrous suspicion ” .

ORG added that the applicant company had not had due regard to the principles established for reporting on suspicions . According to these principles , any such reports had to concern a matter of justifiable public interest , have a minimum factual basis , set out the facts objectively by indicating both the circumstances supporting the suspicion and those pleading in favour of the person under suspicion , be published , in principle , after obtaining comments about the accusations from the person concerned and be the result of research satisfying the requirements of journalistic rigour .

Applying those principles to the case before it , ORG noted firstly that the subject - matter of the report was in the public interest . It also accepted that there had been sufficient material to justify reporting on the suspicions in question . In that connection , it recapitulated the sequence of events forming the background to the article , namely that Mr PERSON had expressed support for the pipeline project throughout his time as Chancellor , that he had met President PERSON at the signing of the declaration of DATE by CARDINAL NORP and NORP private - sector firms , that he had decided to hold early elections at a time when his political party had been in difficulty following its election defeat in GPE , that he had triggered a process resulting in his relinquishing the office of Chancellor and that – according to ORG – it had emerged that between the date of the early elections and his DATE as Chancellor , PERSON had secured a very well - paid post in a consortium controlled by ORG .

ORG added that it was especially legitimate to ask how Mr Schröder could have secured that post as the events in question belonged to an area of fundamental importance in shaping public opinion . It pointed out that the requirements for assessing the legitimacy of such a report should not be too stringent . Otherwise , there was a risk that the media would be limited to commenting on ORG conduct only where there was substantial evidence corroborating the suspicions raised . Such a restriction , however , was not acceptable in this sphere . ORG noted that anyone who attracted public attention , such as politicians , had to accept that the threshold beyond which their conduct could be investigated by the media was lower than that applicable to anyone not in the public domain .

ORG added that the impugned publication had lacked objectivity and balance . It pointed out that the version of events set out in a report should not amount to a prejudgment ( PERSON ) of the person concerned . This was not only the case where the report gave the impression that the person had in fact done what he or she was suspected of doing , but also when a report was intentionally biased and distorted the facts for sensationalist purposes , without regard to the circumstances militating in favour of the person concerned . In ORG view , this was what had happened in the case of the report in issue , since it had made no mention of any factors casting doubt on the accusations made but had referred solely to circumstances corroborating the suspicions , which to a certain extent were concentrated within the offending quotation .

In this connection the Court of Appeal observed that the report did not mention that the DATE election defeat in GPE had considerably weakened the authority of the government majority at federal level and could have constituted a valid reason for asking the electorate , by means of early elections , whether it still supported this majority . Likewise , the report did not mention anywhere that Chancellor PERSON had not adopted an attitude of resignation but rather had been active and combative throughout the election campaign . Lastly , ORG found that at the time of the article ’s publication there had been no information from anyone close to Mr Schröder to suggest that he had based his decision to call early elections on grounds that were spurious ( sachfremd ) .

ORG added that the applicant company had no basis for arguing that these circumstances were so well known to readers that there was no need to reiterate them in the report , since the entire article had sought to suggest to readers that there were no circumstances casting doubt on the facts as presented . Similarly , the fact that the subject of the report was of considerable public interest could not exempt the applicant company from its duty to present a balanced account of the facts . On this point , ORG emphasised that the applicant company was not prevented from criticising PERSON . However , in view of the extremely serious accusation being made , it could have been expected to indicate that the facts had yet to be established .

ORG held , lastly , that the applicant company had not carried out sufficient research before publishing the article . It considered that irrespective of whether the politician quoted in the article should have been required to conduct his own research before raising his questions , the applicant company had had a duty to clarify the facts further before publicly reproducing those questions , which concerned extremely serious allegations . It pointed out that there had been sufficient connecting factors in this regard . For example , the applicant company could have contacted the consortium in GPE , Mr PERSON himself or one of his team to find out when the post for the former Chancellor had been planned or created , when he had discovered the existence of the post and when and by whom the post had been offered to him . ORG added that the fact that other media outlets had reported on similar suspicions could not release the applicant company from its duties . Moreover , the company had not asked PERSON for his views . In ORG opinion , irrespective of whether the views of the person concerned should always be sought when suspicions were being reported , the press had a duty in any event , in order to satisfy the requirements of journalistic rigour , to contact the person concerned when publishing speculation relating to that person ’s motives , provided that the person could be reached for comment . ORG concluded that this duty had been all the more compelling in the case before it , in view of the especially serious nature of the allegation being made .

In a decision of CARDINAL DATE ORG refused the applicant company leave to appeal on points of law , holding that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case - law .

On DATE a chamber of ORG decided not to accept for adjudication a constitutional appeal by the applicant company ( no . MONEY ) . It declined to give reasons for its decision .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

The applicant was born in DATE and lived before his arrest in LOC . He is currently detained in the town of GPE .

On an unspecified date the applicant , while being on the wanted list after having breached his undertaking not to leave the place of his residence , was arrested on the charges of violent acts against a public official ( Article CARDINAL § CARDINAL of LAW of GPE ) . On DATE the Severodvinsk Town Court of LOC authorised his detention .

On DATE the applicant asked ORG to apply a non - custodial restraint measure to him . The applicant and his lawyer attended the hearing and made oral submissions . ORG dismissed the motion for release , having referred , in particular , to the applicant ’s criminal record , which included CARDINAL convictions for having mounted threats of violence against a judge , an offence under LAW , and for contempt of court , punishable under LAW . The applicant appealed .

In the meantime , on DATE the applicant was convicted as charged .

On DATE ORG upheld the decision of ORG . With reference to its discretional powers under LAW the appeal court rejected the applicant ’s leave to appear , and held the hearing in his absence .