CASE OF EL-MASRI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection dismissed (Article 35-1 - Six-month period);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (the United States of America);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);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 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

Dean Spielmann;Elisabeth Steiner;Erik Møse;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE , GPE .

In the application , the applicant referred to his declaration made on DATE for the purpose of the proceedings before the GPE ORG for LOC of GPE ( see paragraphs CARDINAL and DATE below ) .

On DATE the applicant boarded a bus in GPE , GPE , with a view to visiting GPE in order , as he stated , “ to take a short vacation and some time off from a stressful home environment ” . At TIME , he arrived at the NORP / NORP border crossing at GPE . A suspicion arose as to the validity of his recently issued NORP passport . A border official checked his passport and asked him about the purpose of his trip and the length and location of his intended stay . A NORP entry stamp dated DATE was affixed to his passport . On that occasion , his personal belongings were searched and he was questioned about possible ties with several NORP organisations and groups . The interrogation ended at TIME Accompanied by men in civilian clothes who were armed , he was driven to a hotel , which later research indicated was ORG in GPE ( “ the hotel ” ) . Upon his return to GPE , the applicant recognised , through photographs available on the hotel ’s website , the hotel building , the room where allegedly he had been held and CARDINAL of the waiters who had served him food during his detention in the hotel .

The applicant was taken to a room on the top floor of the hotel . During his detention at the hotel , he was watched by a team of CARDINAL men , who changed shift TIME . CARDINAL of them were with him at all times , even when he was sleeping . He was interrogated repeatedly throughout the course of his detention . He was questioned in LANGUAGE despite his limited proficiency in that language . His requests to contact the NORP embassy were refused . On CARDINAL occasion , when he stated that he intended to leave , a gun was pointed at his head and he was threatened with being shot . After DATE of confinement , another official arrived and offered him a deal , namely that he would be sent back to GPE in return for a confession that he was a member of ORG .

On DATE of his confinement , the applicant commenced a hunger strike to protest against his continued unlawful detention . He did not eat for DATE of his detention in the former GPE . DATE after he had commenced his hunger strike , he was told that he would soon be transferred by air back to GPE .

On DATE at TIME , the applicant was filmed by a video camera and instructed to say that he had been treated well , that he had not been harmed in any way and that he would shortly be flown back to GPE . Handcuffed and blindfolded , he was put in a car and taken to FAC .

Upon arrival , still handcuffed and blindfolded , he was initially placed in a chair , where he sat for TIME . He was told that he would be taken into a room for a medical examination before being transferred to GPE . Then , CARDINAL people violently pulled his arms back . On that occasion he was beaten severely from all sides . His clothes were sliced from his body with scissors or a knife . His underwear was forcibly removed . He was thrown to the floor , his hands were pulled back and a boot was placed on his back . He then felt a firm object being forced into his anus . As stated by the applicant ’s lawyers at the public hearing of CARDINAL DATE , of all the acts perpetrated against the applicant that had been the most degrading and shameful . According to the applicant , a suppository was forcibly administered on that occasion . He was then pulled from the floor and dragged to a corner of the room , where his feet were tied together . His blindfold was removed . A flash went off and temporarily blinded him . When he recovered his sight , he saw CARDINAL or CARDINAL men dressed in black and wearing black ski masks . CARDINAL of the men placed him in an adult nappy . He was then dressed in a dark blue short - sleeved tracksuit . A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles . The men put earmuffs and eye pads on him and blindfolded and hooded him . They bent him over , forcing his head down , and quickly marched him to a waiting aircraft , with the shackles cutting into his ankles . The aircraft was surrounded by armed NORP security guards . He had difficulty breathing because of the bag that covered his head . Once inside the aircraft , he was thrown to the floor face down and his legs and arms were spread - eagled and secured to the sides of the aircraft . During the flight he received CARDINAL injections . An anaesthetic was also administered over his nose . He was mostly unconscious during the flight . A NORP exit stamp dated DATE was affixed to the applicant ’s passport .

According to the applicant , his pre - flight treatment at FAC , “ most likely at the hands of the special ORG rendition team ” , was remarkably consistent with a recently disclosed ORG document describing the protocol for the so - called “ capture shock ” treatment ( see paragraph CARDINAL below ) .

Upon landing , the applicant disembarked . It was warmer outside than it had been in the former GPE , which was sufficient for him to conclude that he had not been returned to GPE . He deduced later that he was in GPE and that he had been flown via GPE .

After landing in GPE , the applicant was driven for TIME , then dragged from the vehicle , slammed into the walls of a room , thrown to the floor , kicked and beaten . His head and neck were specifically targeted and stepped upon . He was left in a small , dirty , dark concrete cell . When he adjusted his eyes to the light , he saw that the walls were covered in LANGUAGE , GPE and LANGUAGE handwriting . The cell did not contain a bed . Although it was cold , he had been provided with only one dirty , military - style blanket and some old , torn clothes bundled into a thin pillow . Through a window at the top of the cell , he saw the red , setting sun . Later he understood that he had been transferred to a ORG - run facility which media reports have identified as the “ GPE ” , a brick factory north of the GPE business district that was used by the ORG for detention and interrogation of some high - level terror suspects .

During his confinement , he was interrogated on CARDINAL occasions , each time by the same man , who spoke LANGUAGE with a south NORP accent , and each time at night . His interrogations were accompanied by threats , insults , pushing and shouting . His repeated requests to meet with a representative of the NORP government were ignored .

In DATE the applicant , together with several other inmates with whom he communicated through cell walls , commenced a hunger strike to protest about their continued confinement without charge . As a consequence of the conditions of his confinement and his hunger strike , the applicant ’s health deteriorated on a DATE basis . He received no medical treatment during this time , although he had requested it on several occasions .

On DATE , DATE of his hunger strike , hooded men entered his cell , pulled him from his bed and bound his hands and feet . They dragged him into the interrogation room , sat him on a chair and tied him to it . A feeding tube was then forced through his nose to his stomach and a liquid was poured through it . After this procedure , the applicant was given some canned food , as well as some books to read .

Following his force - feeding , the applicant became extremely ill and suffered very severe pain . A doctor visited his cell in the middle of the night and administered medication , but he remained bedridden for DATE . Around that time , the applicant felt what he believed to be a minor earthquake . In this connection , the applicant submitted the “ List of significant earthquakes of the world in DATE ” , issued by ORG on DATE . According to this document , there was CARDINAL earthquake on DATE in the LOC region , GPE .

On DATE the applicant was visited by a NORP speaker who identified himself only as “ PERSON . The latter visited the applicant CARDINAL more times prior to his release .

On DATE the applicant began his second hunger strike .

On DATE the applicant , blindfolded and handcuffed , was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving . On that occasion , he was handed the suitcase that had been taken from him in GPE . He was told to change back into the clothes he had worn upon his arrival in the former GPE and was given CARDINAL new T - shirts , CARDINAL of which he put on . He was then taken to the waiting aircraft , wearing a blindfold and earmuffs , and was chained to his seat there . “ PERSON accompanied him on the aircraft . He said that the plane would land in a NORP country other than GPE , but that the applicant would eventually continue on to GPE .

When the aircraft landed , the applicant , still blindfolded , was placed in the back seat of a vehicle . He was not told where he was . He was driven in the vehicle up and down mountains , on paved and unpaved roads . The applicant was aware of men getting out of the car and then of men getting in . All of the men had NORP - sounding accents , but said very little . Eventually , the vehicle was brought to a halt . He was taken from the car and his blindfold was removed . His captors gave him his belongings and passport , removed his handcuffs and directed him to walk down the path without turning back . It was dark and the road was deserted . He believed he would be shot in the back and left to die . He rounded a corner and came across CARDINAL armed men . They immediately asked for his passport . They saw that his NORP passport had no visa in it and asked him why he was in GPE without legal permission . He replied that he had no idea where he was . He was told that he was near the NORP borders with the former GPE . The men led him to a small building with an NORP flag and he was presented to a superior officer . The officer observed the applicant ’s long hair and long beard and told him that he looked like a terrorist . He was then driven to Mother Teresa Airport in GPE . He was guided through customs and immigration control without inspection and put on a plane to GPE , GPE . An NORP exit stamp was affixed to the applicant ’s passport .

On DATE at TIME the applicant arrived at FAC . He was QUANTITY lighter than when he had left GPE , his hair was long and unkempt , and he had not shaved since his arrival in the former GPE . Immediately after arrival in GPE , the applicant met PERSON PERSON , a lawyer practising in GPE .

In his written submissions , the applicant stated that he had not undergone any medical examination apart from the isotope analysis of his hair follicles ( see paragraphs CARDINAL below ) . At the public hearing , the applicant ’s lawyers specified that the results of some medical examinations carried out upon his return to GPE had been submitted by the NORP public prosecutor to ORG Fava Inquiry ( see paragraphs CARDINAL - CARDINAL below ) . However , those results had not been submitted to the ORG since they had not been conclusive as to the presence of any physical injury , given the long time that had elapsed since the incident at FAC . Furthermore , the applicant stated that he had been subjected to sophisticated interrogation techniques and methods , which had been specifically designed not to leave any evidence of physical ill - treatment .

NORP The DATE PERSON ( see paragraph CARDINAL below ) noted that the applicant had asked for treatment at the treatment centre for torture victims in GPE shortly after his return to GPE in DATE . However , it took until DATE for PERSON to obtain the required health - insurance funding agreement to start a course of limited treatment ( TIME ) at the centre , which had been considered insufficient both by PERSON and by the therapist herself ( see paragraph CARDINAL of the DATE ORG ) .

The applicant also submitted a written statement of CARDINAL DATE by PERSON , a senior psychologist at ORG , in which she had confirmed that the applicant had suffered from post - traumatic stress disorder and depression “ most likely caused by his experience of capture and extensive maltreatment and abuse ” . PERSON opinion was based on several telephone calls and CARDINAL follow - up discussions with the applicant . She also advised him to visit a clinician in his community with the requisite expertise to help him . The applicant did not comply with that instruction .

On DATE the President of ORG of ORG asked ORG Human Rights to investigate allegations of “ extraordinary renditions ” in LOC . Senator PERSON of GPE was appointed as Special Rapporteur . On DATE the ORG published the DATE PERSON . It set out , on the basis of meetings that took place DATE , the position of the NORP authorities regarding the applicant ’s case . It stated , inter alia :

“ CARDINAL.CARDINAL.CARDINAL.CARDINAL . NORP The position of the authorities

The ‘ official ORG of ORG was first contained in a letter from the Minister of Interior ... to the Ambassador of ORG ... dated DATE . In its simplest form , it essentially contains CARDINAL items of information ‘ according to police records’ : first , Mr PERSON arrived by bus at the NORP border crossing of PERSON at TIME on DATE ; second , he was interviewed by ‘ authorised police officials’ who suspected ‘ possession of a falsified travel ORG ; third , TIME , Mr ORG ‘ was allowed entrance’ into GPE , apparently freely ; and fourth , on DATE , he left GPE over the border crossing of GPE into GPE .

NORP The President of the Republic ... set out a firm stance in the very first meeting with ORG delegation , providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint : ‘ Up to this moment , I would like to assure you that I have not come across any reason not to believe the official position of our ORG . I have no additional comments or facts , from any side , to convince me that what has been established in the official report of our ORG is not the truth.’

On DATE the official position was presented in far greater detail during a meeting with ... [ the ] Head of the ORG , GPE ’s main intelligence service , at the time of the ORG case . [ He ] stated that the ORG ’s ORG had undertaken an investigation into the case and traced official records of all Mr ORG contact with the NORP authorities . The further details as presented by [ the Head of the ORG ] are summarized as follows :

Mr PERSON arrived on the NORP border on DATE , New Year ’s Eve . ORG had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity . In line with these more intense activities , bus passengers were being subjected to a thorough security check , including an examination of their identity documents .

Upon examining Mr ORG passport , the NORP border police developed certain suspicions and decided to ‘ detain him’ . In order not to make the other passengers wait at the border , the bus was at this point allowed to continue its journey .

The objective of holding Mr PERSON was to conduct an interview with him , which ( according to [ the Head of the ORG ] ) was carried out in accordance with all applicable NORP standards . Members of the ORG , the security and counter - intelligence service , are present at all border points in GPE as part of what is described as ‘ ORG and NORP . ORG officials participated in the interview of Mr ORG .

The officials enquired into Mr ORG reasons for travelling into the country , where he intended to stay and whether he was carrying sufficient amounts of money . [ The Head of the ORG ] explained : ‘ I think these were all standard questions that are asked in the context of such a routine procedure – I do n’t think I need to go into further details.’

At the same time , NORP officials undertook a preliminary visual examination of PERSON travel documents . They suspected that the passport might be faked or forged – noting in particular that Mr PERSON was born in GPE , yet claimed to possess NORP citizenship .

A further passport check was carried out against an ORG database . The border point at GPE is not linked to ORG ’s network , so the information had to be transmitted to GPE , from where an electronic request was made to the central ORG database in Lyon[s ] . A ORG official in ORG apparently made this request using an electronic code , so the NORP authorities can produce no record of it . Mr PERSON was made to wait on the border point while the ORG search was carried out .

When it was established that there existed no ORG warrant against Mr PERSON and no further grounds on which to hold him , he was released . He then left the border point at GPE , although NORP officials were not able to describe how . Asked directly about this point in a separate meeting , the Minister of Interior ... said : ‘ we ’re not able to tell you exactly what happened to him after he was released because it is not in our interest ; after the person leaves the border crossing , we ’re not in a position to know how he traveled further.’

ORG subsequently established ... that PERSON had stayed at a hotel in GPE called the ‘ PERSON Merak’ . Mr PERSON is said to have checked in on TIME of DATE and registered in the guest book . He stayed for DATE , including DATE breakfast , and checked out on DATE .

The Ministry then conducted a further check on all border crossings and discovered that on DATE , DATE , in the evening , Mr PERSON left the territory of GPE over the border crossing at GPE , into the territory of GPE . When asked whether Mr ORG had received a stamp to indicate his departure by this means , [ the Head of the ORG ] answered : ‘ Normally there should be a stamp on the passport as you cross the border out of GPE , but I ca n’t be sure . UNMIK [ ORG in GPE ] is also present on the GPE border and is in charge of the protocol on that side ... My ORG colleague has just informed me that he has crossed the border at GPE twice in recent times and did n’t receive a stamp on either occasion.’

NORP What is not said in the official version is the fact that the NORP ORG routinely consults with the ORG on such matters ( which , on a certain level , is quite comprehensible and logical ) . According to confidential information we received ( of which we know the source ) , a full description of PERSON was transmitted to the ORG via its ORG Chief in GPE for an analysis ... did the person in question have contact with terrorist movements , in particular with [ ORG ] ? Based on the intelligence material about PERSON in its possession – the content of which is not known to us – the ORG answered in the affirmative . The ORG , as the local partner organisation , was requested to assist in securing and detaining Mr PERSON until he could be handed over to the ORG for transfer . ”

On DATE the Secretary General of ORG invoked the procedure under LAW with regard to reports of NORP collusion in secret rendition flights . Member GPE were required to provide a report on the controls provided in their internal law over acts by foreign agents in their jurisdiction , on legal safeguards to prevent unacknowledged deprivation of liberty , on legal and investigative responses to alleged infringements of Convention rights and on whether public officials who had allegedly been involved in acts or omissions leading to such deprivation of liberty of detainees had been or were being investigated .

On DATE and DATE the ORG replied to this request . In the latter submission , the ORG stated their position as regards the applicant ’s case . They stated , inter alia :

“ ... As far as the case of Mr PERSON is concerned , we would like to inform you that this case was examined by ORG , and the information about it was sent to the representatives of ORG in GPE , to the Director for LOC in the DG [ Directorate General ] Enlargement of ORG in GPE and to members of ORG DATE . ... [ T]he ORG informs that , based on the police records on entry and exit at the State border of GPE , Mr PERSON arrived , by bus , at the GPE border crossing from ORG and GPE on DATE at TIME presenting a NORP passport . Suspecting possession of a forged travel document , the competent police officers checked the document and interviewed Mr PERSON at the border crossing . A check in the ORG records was also carried out which showed that no international arrest warrant had been issued for Mr PERSON . Mr PERSON was allowed to enter GPE on DATE at TIME According to the police records , Mr PERSON left GPE on DATE at the GPE border crossing to ORG and GPE ( on the GPE section ) . ”

The Government confirmed their version of events as outlined above ( see paragraphs CARDINAL and DATE above ) . They denied that the applicant had been detained and ill - treated by ORG agents in the hotel , that he had been handed over to ORG agents , and that the latter had ill - treated him at FAC and transferred him to a ORG - run prison in GPE . In their submission , the applicant had freely entered , stayed in and left the territory of the respondent ORG . The only contact with ORG agents had occurred on DATE , on the occasion of his entry into the respondent ORG , when enquiries had been undertaken regarding the validity of his passport . There had been no other contact with ORG agents during his entire stay in the respondent ORG . The enquiries by ORG demonstrated that the applicant had stayed in the respondent ORG by his own choice and free will DATE and DATE , when he had freely left the ORG through the GPE border crossing .

In support of their argument , they submitted a copy of the following documents : extracts from the official border - crossing records for PERSON and GPE ; an extract from the hotel guest book in which the applicant had been registered as a guest occupying room number CARDINAL DATE and DATE ; and CARDINAL letters of DATE in which the hotel ’s manager , firstly , had communicated to ORG the names of QUANTITY persons who had been on duty in the hotel at the relevant time and , secondly , had denied that any person had ever stayed in the hotel involuntarily . It was further specified that the person whose photograph was on the hotel ’s website ( see paragraph CARDINAL above ) was PERSON Z.G. , who could be found in the hotel . They also produced a letter of DATE in which ORG had informed ORG that on DATE a ORG CARDINAL aircraft flying from GPE ( GPE ) , registered as flight no . NCARDINALP , had been given permission to land at FAC , that the same aircraft had received permission ( at TIME ) to take off on DATE to GPE ( GPE ) , and that at CARDINAL a.m. on DATE permission had been given for that aircraft to fly to GPE ( GPE ) . Furthermore , the Government filed a copy of the applicant ’s hotel bills which , according to them , he had paid in cash . Lastly , they provided a copy of a police record of the applicant ’s apprehension at the GPE border crossing on DATE . As specified in the record , the applicant had been held TIME and TIME The record does not state the reasons for his apprehension , but it contains an incomplete handwritten note that he was apprehended on the basis of “ tel . no . CARDINAL of DATE ” .

There have been a number of international inquiries into allegations of “ extraordinary renditions ” in LOC and the involvement of NORP governments . The reports have referred to the applicant ’s case .

The DATE Marty Report ( see paragraph CARDINAL above ) stated , inter alia :

“ A. Draft resolution

The facts and information gathered to date , along with new factual patterns in the process of being uncovered , indicate that the key elements of this ‘ spider ’s web’ have notably included : a worldwide network of secret detentions on ORG ‘ black sites’ and in military or naval installations ; the ORG ’s programme of ‘ ORG , under which terrorist suspects are flown between GPE on civilian aircraft , outside of the scope of any legal protections , often to be handed over to GPE who customarily resort to degrading treatment and torture ; and the use of military airbases and aircraft to transport detainees as human cargo to LOC in GPE or to other detention centres .

Attempts to expose the true nature and extent of these unlawful operations have invariably faced obstruction or dismissal , from GPE and its NORP partners alike . The authorities of most ORG member ORG have denied their participation , in many cases without actually having carried out any inquiries or serious investigations .

C. Explanatory memorandum

NORP ORG methodology – how a detainee is treated during a rendition

... Collectively , the cases in the report testify to the existence of an established modus operandi of rendition , put into practice by an elite , highly - trained and highly - disciplined group of ORG agents ...

Conclusion

Whilst hard evidence , at least according to the strict meaning of the word , is still not forthcoming , a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter - State transfers have taken place in LOC . ...

FAC was categorised in the DATE Marty Report as a “ one - off pick - up point ” , that is , a point from which CARDINAL detainee or CARDINAL group of detainees was picked up for rendition or unlawful transfer , but not as part of a systemic occurrence .

As to the applicant ’s case , the DATE Marty Report stated , inter alia :

“ CARDINAL . Specific examples of documented renditions

PERSON

NORP We spoke for many hours with PERSON , who also testified publicly before ORG of ORG , and we find credible his account of detention in GPE and GPE for DATE .

CARDINAL.CARDINAL.CARDINAL . Elements of corroboration for Mr ORG account

Mr GPE account is borne out by numerous items of evidence , some of which can not yet be made public because they have been declared secret , or because they are covered by the confidentiality of the investigation under way in the office of the GPE prosecuting authorities following Mr ORG complaint of abduction .

The items already in the public domain are cited in the afore - mentioned memorandum submitted to the GPE court in which Mr ORG lodged his complaint :

• Passport stamps confirming Mr PERSON entry to and exit from GPE , as well as exit from GPE , on the dates in question ;

• Scientific testing of Mr PERSON hair follicles , conducted pursuant to a NORP criminal investigation , that is consistent with Mr ORG account that he spent time in a NORP country and was deprived of food for an extended period of time ;

• Other physical evidence , including Mr PERSON passport , the CARDINAL T - shirts he was given by his NORP captors on departing from GPE , his boarding pass from GPE to GPE , and a number of keys that Mr PERSON possessed during his ordeal , all of which have been turned over to NORP prosecutors ;

• Aviation logs confirming that a ORG business jet owned and operated by defendants in this case [ a GPE - based corporation , ORG , and operated by another GPE - based corporation , ORG ] , then registered by the ORG [ ORG ] as NCARDINALP , took off from GPE , GPE , GPE on DATE ; landed at ... FAC at TIME ; and left GPE TIME , flying to GPE and then on to GPE , the NORP capital [ a database of aircraft movements , compiled on the basis of information obtained from various sources , was attached to the DATE Marty Report ] ;

• Witness accounts from other passengers on the bus from GPE to GPE , which confirm Mr ORG account of his detention at the border ;

• Photographs of the hotel in GPE where Mr GPE was detained for DATE , from which Mr PERSON has identified both his actual room and a staff member who served him food ;

• Geological records that confirm Mr PERSON recollection of minor earthquakes during his detention in GPE ;

• Evidence of the identity of ‘ Sam’ , whom PERSON has positively identified from photographs and a police line - up , and who media reports confirm is a NORP intelligence officer with links to foreign intelligence services ;

• Sketches that Mr PERSON drew of the layout of the NORP prison , which were immediately recognisable to another rendition victim who was detained by the GPE in GPE ;

• Photographs taken immediately upon Mr PERSON return to GPE that are consistent with his account of weight loss and unkempt grooming .

One could , with sufficient application , begin to tease out discrepancies in the official line . For example , ORG stated that ‘ the hotel owner should have the record of PERSON ’s bill’ , while the hotel owner responded to several [ e]nquiries , by telephone and in person , by saying that the record had been handed over to ORG .

All these factual elements indicate that the ORG carried out a ‘ rendition’ of PERSON . The plane in question had finished transferring another detainee DATE and the plane was still on the same ‘ rendition circuit’ . The plane and its crew had spent the interim period at GPE , a popular ORG staging point . The physical and moral degradation to which Mr ORG was subjected before being forced aboard the plane in GPE corresponds with the ORG ’s systematic ‘ rendition methodology’ described earlier in this report . The destination of the flight carrying Mr PERSON , GPE , forms a hub of ORG secret detentions in our graphic representation of the ‘ spider ’s web’ .

It is worth repeating that the analysis of all facts concerning this case points in favour of the credibility of ORG . Everything points in the direction that he was the victim of abduction and ill - treatment amounting to torture within the meaning of the term established by the case - law of ORG against Torture ... ”

In his report of CARDINAL DATE , Senator PERSON stated , inter alia :

“ CARDINAL . Some NORP governments have obstructed the search for the truth and are continuing to do so by invoking the concept of ‘ State secrets’ . Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences ... The same approach led the authorities of the former GPE to hide the truth and give an obviously false account of the actions of its own national agencies and the ORG in carrying out the secret detention and rendition of PERSON .

We believe we have now managed to retrace in detail Mr GPE odyssey and to shed light on his return to LOC : if we , with neither the powers nor resources , were able to do so , why were the competent authorities unable to manage it ? There is only one possible explanation : they are not interested in seeing the truth come out .

... We were able to prove the involvement of the ORG in Mr ORG transfer to GPE by linking the flight that carried him there DATE on the aircraft NCARDINALP , flying from GPE ( the former GPE ) to GPE ( GPE ) to GPE ( GPE ) on DATE to another known ORG detainee transfer on the same plane DATE , thus establishing the first ‘ rendition circuit’ . ...

Upon Mr ORG arrival in GPE , he was taken to a ORG secret detention facility near GPE and held in a ‘ small , filthy , concrete PERSON for a period of over DATE . During this period the ORG discovered that no charges could be brought against him and that his passport was genuine , but inexplicably kept PERSON PERSON in his squalid , solitary confinement for DATE thereafter .

DATE I think I am in a position to reconstruct the circumstances of PERSON PERSON ’s return from GPE : he was flown out of GPE on CARDINAL May CARDINAL on board a ORG - chartered Gulfstream aircraft with the tail number NCARDINALRK to a military airbase in GPE called [ ORG ] GPE .

The ‘ official version’ of Mr ORG involuntary stay in the former GPE has definitely become utterly untenable ... ”

On DATE ORG set up ORG on ORG and appointed Mr PERSON as Rapporteur with a mandate to investigate the alleged existence of ORG prisons in LOC . ORG held CARDINAL meetings and sent delegations to the former GPE , GPE , GPE , GPE , GPE , GPE and GPE .

It identified CARDINAL flights operated by the ORG in NORP airspace DATE and DATE . During its visit to the former GPE , the Inquiry met with high - ranking officials .

DATE . On DATE ORG adopted a ORG on the alleged use of NORP countries by the ORG for the transportation and illegal detention of prisoners ( CARDINAL ) , doc . PERSON ) , which stated , inter alia :

“ CARDINAL . [ ORG ] condemns the abduction by the ORG of the NORP national , PERSON [ ORG ] , who was held in GPE from DATE and subjected to degrading and inhuman treatment ; notes further the suspicion – not yet allayed DATE that PERSON [ GPE ] was illegally held before that date , from CARDINAL DATE to DATE , in the former GPE and that he was transported from there to GPE on DATE ; considers the measures that the former GPE claims to have taken to investigate the matter to be inadequate ;

Condemns the fact that the NORP national , [ PERSON ] ORG , was held illegally in GPE for DATE ; deplores the reluctance of the authorities of the former GPE to confirm that PERSON was in GPE and was probably being held there before his rendition to GPE by ORG agents ;

On DATE the final Report on the alleged use of NORP countries by the ORG for the transportation and illegal detention of prisoners ( CARDINAL/CARDINAL(INI ) , doc . ACARDINAL - CARDINAL/CARDINAL ) was published . Noting the lack of thorough investigation by the respondent ORG , the ORG stated , inter alia :

“ CARDINAL . [ ORG ] condemns the extraordinary rendition of the NORP citizen PERSON , abducted at the border crossing PERSON in the former GPE on DATE , illegally held in GPE from DATE to DATE and then transported to GPE on DATE , where he was held until DATE and subjected to degrading and inhuman treatment ;

Fully endorses the preliminary findings of ORG PERSON that there is no evidence on the basis of which to refute PERSON version of events ;

The ORG also emphasised that “ the concept of ‘ secret detention CARDINAL includes not only prisons , but also places where somebody is held incommunicado , such as private apartments , police stations or hotel rooms , as in the case of PERSON in GPE ” .

In the course of the periodic review of the respondent ORG ’s compliance with LAW conducted by ORG during its DATE session , the latter “ noted the investigation undertaken by ORG and its denial of any involvement in the [ applicant ’s ] rendition notwithstanding the highly detailed allegations as well as the concerns [ raised by the PERSON and PERSON ] ” . ORG made the following recommendation :

“ CARDINAL . ... ORG should consider undertaking a new and comprehensive investigation of the allegations made by Mr PERSON . The investigation should take account of all available evidence and seek the cooperation of Mr [ PERSON ] himself ... ”

This recommendation was supported by the Commissioner for Human Rights of the Council of Europe in his report published on DATE ( ORG Commissioner for Human Rights , PERSON , “ Report on visit to the former GPE , DATE ” ) .

On DATE the applicant filed a petition with ORG . On DATE the ORG transmitted the petition to the GPE government for comments . No further information has been provided in respect of these proceedings .

On an unspecified date in DATE the GPE public prosecutor ’s office opened an investigation into the applicant ’s allegations that he had been unlawfully abducted , detained , physically and psychologically abused and interrogated in the former GPE and GPE . According to the applicant , a number of investigative steps were taken , including an examination of eyewitnesses who confirmed that the applicant had travelled to the former GPE by bus at DATE and that he had been detained shortly after entering that ORG .

Furthermore , a radioactive isotope analysis of the applicant ’s hair was carried out . An expert report of CARDINAL DATE stated , inter alia :

“ ... it is very likely that the changes observed in the enclosed isotopic signatures [ of the applicant ’s hair ] indeed correspond to [ the applicant ’s ] statements ... ”

According to ORG of the NORP GPE ( see paragraphs CARDINAL below ) , the radioisotope analysis also confirmed that the applicant had undergone CARDINAL hunger strikes .

On DATE the GPE public prosecutor issued arrest warrants for CARDINAL ORG agents on account of their involvement in the applicant ’s alleged rendition . The names of the people sought were not made public . The identities of the ORG agents were allegedly given to the NORP prosecutor by the NORP authorities , which had uncovered them in the course of their investigation into the use of NORP airports by the ORG .

On DATE the NORP GPE ( ORG ) appointed ORG Sixteenth Legislative Period ( “ ORG ) to review the activities of the secret services . Over a period of investigation of DATE , ORG held a total of CARDINAL sessions , CARDINAL areas of investigation were addressed and a total of CARDINAL witnesses were heard , including the applicant . The findings of ORG were made public on DATE .

ORG report , which runs altogether to CARDINAL pages , stated , inter alia :

“ ... PERSON report on his imprisonment in GPE and in GPE is credible as to the core facts of his detention in GPE and his transfer to GPE , as well as his confinement there by GPE forces . Doubts remain , however , about some specific aspects of his account .

The police investigations conducted by NORP law - enforcement authorities and supported by the BKA [ ORG German ORG ] reaffirm Mr ORG account . His trip to GPE on DATE was corroborated by witnesses . ORG account of the transfer from GPE to GPE by GPE forces is consistent with subsequent reports from other victims of the excesses of the ‘ war on GPE by the GPE government at the time . The recorded movement of an ORG CARDINAL of the presumed ORG airline ‘ Aero - Contractors’ that flew from GPE to GPE on DATE and continued on to GPE matches the temporal information that Mr PERSON provided on the duration of his confinement at a NORP hotel ...

All this supports the ORG ’s profound doubts about the official NORP version of the events ... The NORP government continue to deny his detention at the hotel and his transfer to GPE , calling this a defamatory media campaign . This official account of the events by GPE is clearly incorrect . Rather , it must be concluded that convincing evidence exists for ORG account of the course of his arrest and transfer outside the country ... ” ( p. CARDINAL )

According to the report , doubts remained about the actual purpose of the applicant ’s trip to GPE and significant discrepancies were noted in his statements concerning his questioning in the former GPE and GPE , in particular his suspicion as to the NORP background of “ PERSON .

On DATE ORG ( ORG ) filed a claim on behalf of the applicant in the GPE ORG for LOC of GPE against a number of defendants , including the former ORG Director PERSON and certain unknown ORG agents . The claim alleged that the applicant had been deprived of his liberty in the absence of legal process and included a claim under LAW ( ATS ) for violations of international legal norms prohibiting prolonged arbitrary detention and cruel , inhuman or degrading treatment .

In DATE ORG dismissed the applicant ’s claim , finding that the GPE government had validly asserted the ORG secrets privilege . ORG held that the ORG ’s interest in preserving ORG secrets outweighed the applicant ’s individual interest in justice . That decision was confirmed on appeal by ORG for ORG . In DATE ORG refused to review the case .

In DATE an internal inquiry was carried out into the applicant ’s claims by the ORG within ORG . The applicant was not invited to produce any evidence before the ORG , nor was he informed of the outcome of the investigation . The results of this inquiry were not communicated to him , but to the representatives of ORG in the respondent ORG ( see paragraph CARDINAL above ) .

After having been given notice of the instant case , the ORG submitted a copy of CARDINAL reports issued on DATE and DATE by the ORG . Both reports were drawn up at the request of ORG , which had acted on CARDINAL separate legal assistance requests , dated DATE and CARDINAL DATE respectively , from the GPE public prosecutor investigating the applicant ’s criminal complaint in GPE . These reports reiterated the ORG ’s version of events as described above . They specified that the applicant , after having arrived at the GPE border crossing on DATE , had been held TIME and TIME in the official border LOC and interviewed by the NORP police in connection with the alleged possession of a forged passport . After he had been released , he had stayed in the hotel , occupying room number CARDINAL . He had paid the hotel bill and had left the respondent State , as a pedestrian , at TIME on DATE at the FAC border crossing . It was further specified that the then Head of the ORG , which had operated within ORG , had never been rewarded by any foreign agency , including the ORG . It was concluded that no one , including the applicant , had ever been held in the hotel and interrogated by agents of ORG .

In the course of these inquiries , ORG submitted to the NORP public prosecutor the documents indicated above ( see paragraph CARDINAL ) .

On DATE the applicant , through his legal representative Mr PERSON , lodged a criminal complaint with the ORG public prosecutor ’s office against unidentified law - enforcement officials on account of his unlawful detention and abduction , offences punishable under LAW . The complaint also alleged the crime of torture or other inhuman or degrading treatment or punishment , punishable under LAW and CARDINAL of LAW . In support of his complaint , the applicant submitted a copy of his affidavit prepared for the purposes of his lawsuit in GPE and produced the following evidence : a copy of his passport ; relevant extracts from DATE Marty Reports and ORG ; a copy of the aviation logs ; a letter from FAC authorities issued on DATE ( in reply to the applicant ’s request for information ) attesting that on DATE a ORG CARDINAL aircraft registered by the ORG as NCARDINALP had landed at FAC without any passengers and that it had taken off on DATE carrying CARDINAL passenger ; a translated version of the expert report on the applicant ’s hair ; and sketches of the hotel room where the applicant had allegedly been detained . The photograph of the waiter who had allegedly served the applicant with food was not included in the submission to the public prosecutor because “ the applicant had been unable to preserve a copy at the relevant time and the photograph was no longer available on the hotel ’s website ” . The applicant further complained that , while being held at the GPE border crossing and in ORG , he had been denied the right to contact his family , a lawyer of his own choosing or a representative of the NORP embassy .

DATE . On DATE the public prosecutor requested ORG to investigate the applicant ’s allegations , and in particular to provide concrete information regarding the events at the GPE border - crossing point , the hotel and FAC in order to establish the truth .

On DATE the ORG confirmed its previous findings and reiterated that all documents had already been submitted to the public prosecutor ’s office ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the public prosecutor rejected the applicant ’s criminal complaint as unsubstantiated . Relying on the information submitted by the ORG , the public prosecutor found no evidence that unidentified officials had committed the alleged crimes . According to the applicant , he was notified of that decision on DATE .

The Government confirmed that , during the investigation , the public prosecutor had taken oral evidence from neither the applicant nor the personnel working in the hotel at the relevant time . Furthermore , no steps had been taken to establish the purpose of the landing of the aircraft mentioned in the letter issued by the FAC authorities on DATE and attached to the applicant ’s criminal complaint ( see paragraph CARDINAL above ) . In the ORG ’s view , this was because the inquiries made by ORG had rebutted the applicant ’s implausible allegations . Furthermore , during the DATE inquiries ORG had already interviewed the persons working in the hotel at the time ( see paragraphs CARDINAL and CARDINAL above ) . They had produced consistent evidence . However , there had been no record of those interviews .

On DATE Mr PERSON , on behalf of the applicant , brought a civil action for damages against the ORG and ORG in relation to his alleged unlawful abduction and ill - treatment . The claim was based on sections CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . The applicant claimed MONEY ( equivalent to MONEY ) in respect of the non - pecuniary damage resulting from his physical and mental pain and the fear that he would be killed during his detention . He reiterated his complaints that he had been denied the right to establish any contact with the outside world . The fact that his family had had no information about his fate and whereabouts had added to his mental suffering . That had amounted to a separate violation of his family life under LAW . He further argued that such actions by ORG agents amounted to a violation of Articles CARDINAL , CARDINAL and DATE of the LAW . Besides the evidence submitted in his criminal complaint ( see paragraph CARDINAL above ) , the applicant requested that the civil courts hear oral evidence from him and that a psychological examination be carried out .

The Government informed the ORG that QUANTITY hearings had so far been scheduled before ORG . Many adjournments had been ordered owing to the absence of the applicant , who was imprisoned in GPE in relation to another offence . The case is still pending before the first - instance court .

Mr GPE , who was the NORP Minister of the ORG DATE and DATE and Prime Minister DATE , gave a written statement , certified by a notary public on DATE , in which he stated , inter alia :

I can affirm that it was during my tenure as Minister of the ORG , in DATE and DATE , that NORP agents belonging to the ORG , acting under my authority as Minister and under the direct supervision of the then ORG Director , were engaged in detaining a man who was travelling with a NORP passport under the name of PERSON .

Mr PERSON attempted to enter GPE on a bus from GPE on DATE . NORP police officials stopped him at the GPE border crossing with GPE . He was taken off the bus and held at the border crossing because the police suspected that his identity might be fraudulent .

Our ORG liaisons told their GPE intelligence partners about Mr ORG arrival and were told that this man was suspected of involvement in NORP terrorism . GPE received a valid international warrant from the GPE bearing Mr GPE name and an official request to detain this man .

Acting in compliance with the GPE request , the NORP government agreed to hold Mr PERSON until he could be handed over to the GPE authorities for further interrogation . As Minister of the Interior I was kept informed of the ORG ’s actions and authorised them from the very beginning , although I was not involved at the operational level . I also liaised with our GPE counterparts on behalf of the NORP government .

Mr PERSON was held for a certain period in a location in GPE , secretly and without incident , under the constant supervision of ORG agents .

Mr PERSON was not regarded as a threat to GPE and held no intelligence value for GPE ’s purposes . If the decision had been ours alone , we would have released him . However , we acted faithfully on the warrant of our GPE counterparts , who indicated that they would send an aircraft and a team of ORG agents to GPE to take custody of Mr ORG and fly him out of the country . As time passed I indicated to our GPE counterparts that GPE would have to release PERSON PERSON if this rendition could not take place quickly .

Ultimately , some time on DATE , Mr PERSON was handed over to the custody of a ORG ‘ rendition team’ at FAC and was flown out of GPE on a ORG - operated aircraft .

NORP The entire operation was thoroughly documented on the NORP side by ORG personnel in ORG . This documentation was kept securely and ought to be available in the ORG ’s files . I can not state exactly what the files contain but I know that the relevant materials were not destroyed while I was the Minister of the ORG .

DATE after PERSON had been flown out of the country , I received a final report on the operation through the appropriate line of reporting in ORG . In my recollection , the final report indicated that GPE had adhered exactly to the terms of a legitimate international warrant regarding Mr PERSON . GPE acted according to its domestic laws and procedures regulating the activities of ORG .

GPE ’s status as a reliable partner in global counterterrorism was strengthened by the way we carried out this operation . Our GPE partners expressed great appreciation for GPE ’s handling of the matter .

I am aware that the GPE authorities ultimately released Mr PERSON , without charge , after several further DATE of detention . I understand that Mr ORG situation resulted from a mistake . I maintain that if any mistake was made in PERSON PERSON ’s case , it was not GPE ’s mistake , and I do not believe there was any intentional wrongdoing on the part of the NORP authorities .

I am aware that Mr PERSON has now taken his case to ORG in GPE . My statement is expressly and solely for the purposes of this ORG ’s deliberations on the application of PERSON , and may not be used in the pursuit of any investigations against individuals .

I solemnly declare upon my honour and conscience that the evidence contained in this statement is the truth , the whole truth and nothing but this truth . ”

Mr GPE is a citizen of GPE . He works as a lawyer and investigator . Appointed as an adviser to Senator PERSON in the context of ORG and a member of ORG , he took part in fact - finding missions in the respondent ORG , attended meetings with the highest - level officials and contacted sources close to the ORG and the intelligence services . He further discussed the applicant ’s case with other relevant domestic and foreign government officials and non - governmental representatives . He also interviewed the applicant on several occasions in DATE , as well as other witnesses . At the Open Society Justice Initiative ’s request , on DATE he submitted an expert report running to CARDINAL pages in which he detailed the factual findings of his investigations into the applicant ’s case . The report was based on a “ considerable amount of original testimonial , documentary and other physical evidence related to the applicant ’s case ” , most of which was obtained from people who had requested anonymity given the confidential and sensitive nature of the matter . According to the expert , “ the Government has classified as ‘ Top Secret’ all the documentation in its files that might help to shed light on the case ” ( see paragraph CARDINAL of the report ) . He made repeated site visits of the GPE border crossing , the hotel and FAC and interviewed “ witnesses and other sources who participated in or experienced the[se ] events at first hand ” . In the report , the expert gave detailed information about : the applicant ’s arrival in the respondent State ; the chronological sequence of events at the GPE border crossing and the actions taken by the NORP border officials with respect to the applicant ; the ORG ’s deployment to PERSON and the on - site interrogation of the applicant ; the ORG ’s liaison with the ORG ; and the landing , route and timing of a ORG - operated flight which had been used for the applicant ’s transfer from FAC . As noted in the report , after the arrival of the ORG agents at the GPE border crossing , “ the NORP authorities took meticulous and wide - ranging measures ... to conceal from scrutiny anything out of the ordinary – including deviations from NORP law and procedures – that might happen to PERSON PERSON while held in NORP custody . I have been struck by the attention to detail I have learned about on the part of the NORP authorities , as they sought to cover up or interfere with almost every avenue of independent investigation into the truth of what happened ” ( see paragraph CARDINAL of the report ) .

DATE . The applicant submitted CARDINAL reports containing the ORG ’s observations on the report of ORG of the NORP GPE ( see paragraphs CARDINAL above ) , cables sent by the GPE embassy ( see paragraph CARDINAL below ) and the arrest warrants issued by the GPE public prosecutor ’s office ( see paragraph CARDINAL above ) .

The applicant submitted several diplomatic cables in which the GPE diplomatic missions in the respondent ORG , GPE and GPE had reported to the GPE Secretary of ORG about the applicant ’s case and/or the alleged ORG flights and the investigations in GPE and GPE ( cable CARDINALSKOPJECARDINAL , issued on DATE ; cable CARDINALSKOPJECARDINAL , issued on DATE ; cable DATE , issued on DATE ; cable CARDINALMADRIDCARDINAL , issued on DATE ; and cable CARDINALMADRIDCARDINAL , issued on DATE ) . These cables were released by ORG ( described by the ORG on DATE as “ a whistle - blowing website ” ) in DATE .

Under LAW , DATE of the LAW , the right to liberty is irrevocable . No one may be deprived of his liberty except by a court decision and in the cases and under a procedure prescribed by law . Everyone detained must be brought immediately , and in any event no later than TIME from the detention , before a court that must decide on the lawfulness of the detention without any delay .

Pursuant to LAW , prosecution of offences subject to a prison sentence of DATE becomes statute - barred DATE after the offence was committed .

Under LAW , any procedural step taken with a view to prosecuting the perpetrator interrupts the running of the time bar .

Article CARDINAL of the Criminal Code provides that a person who unlawfully detains , holds in custody or otherwise restricts another ’s freedom of movement is to be fined or punished by a term of imprisonment of DATE . An official who unlawfully deprives another of his or her liberty is to be punished by a term of imprisonment of DATE .

Article CARDINAL of the Criminal Code punishes acts of torture , providing for a prison term of DATE .

Article CARDINAL of the Criminal Code provides that a person who , in the performance of his or her official duties , mistreats , intimidates , insults or generally treats another in such a manner that his or her human dignity or personality is humiliated is to be punished by a term of imprisonment of DATE .

Section CARDINAL of LAW provided that anyone who was summoned , arrested or detained had to be informed promptly , in a language which he or she understood , of the reasons for the summons , arrest or detention and of his or her statutory rights . He or she could not be forced to make a statement . A suspect , that is , a person accused of an offence , had to be clearly informed from the outset of his or her right to remain silent , to consult with a lawyer , to have a lawyer of his or her choice present during questioning , and to inform a third party of his or her detention . A detainee should be brought promptly or , at the latest , TIME after the detention , before a judge who would decide on the lawfulness of the detention .

Section CARDINAL of the Act provided that criminal proceedings must be instituted at the request of an authorised prosecutor . In cases involving offences subject to prosecution by the ORG proprio motu or on an application by the victim , the authorised prosecutor was the public prosecutor , whereas in cases involving offences subject to merely private charges , the authorised prosecutor was the private prosecutor . If the public prosecutor found no grounds for the institution or continuation of criminal proceedings , his or her role could be assumed by the victim , acting as a subsidiary prosecutor under the conditions specified in the LAW .

Section CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) provided , inter alia , that where the public prosecutor found that there were no grounds for prosecuting an offence subject to ORG prosecution , he or she was to notify the victim of that decision within DATE . The public prosecutor also had to inform the victim that the latter could conduct the prosecution . The victim could take over the prosecution within DATE from the receipt of the prosecutor ’s notification . A victim who was not informed of the public prosecutor ’s decision could make a written application to the competent court to take over the prosecution within DATE after the prosecutor rejected his or her complaint .

Under LAW , the public prosecutor was to reject a criminal complaint if , inter alia , there were no grounds to conclude that a crime had been committed . The public prosecutor had to notify the victim of the rejection and the reasons therefor within DATE ( section DATE ) . An amendment to that provision , enacted in DATE , specified that the public prosecutor should submit a copy of the decision rejecting the criminal complaint in which the victim was to be advised that he or she had the right to take over the prosecution within DATE . Where there was insufficient evidence or a complaint had been lodged against an unknown perpetrator , the public prosecutor would seek information from ORG . The public prosecutor could also seek information from the complainant or any other person who could contribute to establishing the facts .

Section CARDINAL specified the grounds for pre - trial detention .

Under LAW , pre - trial detention was ordered by an investigating judge . The person detained could appeal against that order within TIME before a CARDINAL - judge panel , which was required to determine the appeal within TIME .

Section CARDINAL(CARDINAL ) provided that officials of ORG could arrest , without a court order , anyone suspected of committing an offence prosecutable by automatic operation of the law . The arrested person had to be brought promptly before an investigating judge . In accordance with section DATE ) and as an exception to the general rule , Ministry officials could detain a person if it was necessary to determine his or her identity , to verify his or her alibi or if there were other grounds requiring the collection of information to enable proceedings to be brought against a third party . Subsection ( CARDINAL ) required the arrested person to be given the information referred to in section CARDINAL of the Act . Section CARDINAL ) provided that detention pursuant to section DATE ) could not exceed TIME . ORG official was required either to release the arrested person or to proceed in accordance with section QUANTITY ) .

Section CARDINAL of LAW defines different grounds for claiming civil compensation .

NORP Under LAW , an employer is liable for damage caused by an employee in the performance of his or her duties or in relation to them . The victim can claim compensation directly from the employee if the damage was caused intentionally . The employer may seek reimbursement from the employee of the compensation awarded to the victim if the employee caused the damage intentionally or negligently .

The relevant parts of LAW read as follows :

“ CARDINAL . With a view to facilitating the exercise of consular functions relating to nationals of the sending ORG :

( b ) if he so requests , the competent authorities of the receiving ORG shall , without delay , inform the consular post of the sending ORG if , within its consular district , a national of that ORG is arrested or committed to prison or to custody pending trial or is detained in any other manner . Any communication addressed to the consular post by the person arrested , in prison , custody or detention shall be forwarded by the said authorities without delay . The said authorities shall inform the person concerned without delay of his rights under this sub - paragraph ... ”

The relevant provisions of the ORG , which was adopted on DATE and came into force on DATE , read as follows .

No derogation from ORG CARDINAL , DATE , DATE ( paragraphs CARDINAL and CARDINAL ) , CARDINAL , DATE , DATE and DATE may be made under this provision .

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his free consent to medical or scientific experimentation . ”

“ CARDINAL . Everyone has the right to liberty and security of person . No one shall be subjected to arbitrary arrest or detention . No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law .

Anyone who is arrested shall be informed , at the time of arrest , of the reasons for his arrest and shall be promptly informed of any charges against him .

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release . It shall not be the general rule that persons awaiting trial shall be detained in custody , but release may be subject to guarantees to appear for trial , at any other stage of the judicial proceedings , and , should occasion arise , for execution of the judgment .

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court , in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful .

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation . ”

The relevant provisions of the above - mentioned ORG , which was adopted on DATE , came into force on DATE , and has been signed but not ratified by the respondent ORG , read as follows .

“ CARDINAL . No one shall be subjected to enforced disappearance .

No exceptional circumstances whatsoever , whether a state of war or a threat of war , internal political instability or any other public emergency , may be invoked as a justification for enforced disappearance . ”

“ For the purposes of this Convention , ‘ enforced ORG is considered to be the arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorization , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . ”

“ ORG shall take appropriate measures to investigate acts defined in LAW committed by persons or groups of persons acting without the authorization , support or acquiescence of the ORG and to bring those responsible to justice . ”

“ ORG shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law . ”

The relevant passage of this manual reads as follows :

“ CARDINAL . Alleged victims of torture or ill - treatment and their legal representatives must be informed of , and have access to , any hearing as well as to all information relevant to the investigation and must be entitled to present other evidence . ”

The relevant parts of the ORG , adopted on DATE ( Yearbook of ORG , DATE , vol . II ) , read as follows :

“ The conduct of an organ of a ORG or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the ORG under international law if the organ , person or entity acts in that capacity , even if it exceeds its authority or contravenes instructions .

“ CARDINAL . The breach of an international obligation by an act of a ORG not having a continuing character occurs at the moment when the act is performed , even if its effects continue .

NORP The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation .

The breach of an international obligation requiring a ORG to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation . ”

“ CARDINAL . The breach of an international obligation by a ORG through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which , taken with the other actions or omissions , is sufficient to constitute the wrongful act .

NORP In such a case , the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation . ”

“ A ORG which aids or assists another ORG in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if :

( a ) that ORG does so with knowledge of the circumstances of the internationally wrongful act ; and

( b ) the act would be internationally wrongful if committed by that ORG . ”

The relevant passage of this report reads as follows :

“ CARDINAL . Finally , the Special Rapporteur would like to appeal to all GPE to ensure that in all appropriate circumstances the persons they intend to extradite , under terrorist or other charges , will not be surrendered unless the Government of the receiving country has provided an unequivocal guarantee to the extraditing authorities that the persons concerned will not be subjected to torture or any other forms of ill - treatment upon return , and that a system to monitor the treatment of the persons in question has been put into place with a view to ensuring that they are treated with full respect for their human dignity . ”

The relevant parts of this ORG read as follows :

“ CARDINAL . On the basis of an extensive review of legal and factual material from these and other reliable sources , the ORG concludes that the circumstances surrounding detentions by GPE at LOC show unlawfulness and inconsistency with the rule of law , on the following grounds :

vii . GPE has , by practising ‘ rendition’ ( removal of persons to other countries , without judicial supervision , for purposes such as interrogation or detention ) , allowed detainees to be subjected to torture and to cruel , inhuman or degrading treatment , in violation of the prohibition on non - refoulement ... ”

“ CARDINAL . ’Enforced disappearances’ entail a deprivation of liberty , refusal to acknowledge the deprivation of liberty or concealment of the fate and the whereabouts of the disappeared person and the placing of the person outside the protection of the law .

ORG unequivocally condemns enforced disappearance as a very serious human rights violation on a par with torture and murder , and it is concerned that this humanitarian scourge has not yet been eradicated , even in LOC . ”

The relevant part of this ORG reads as follows :

“ ORG ,

Reminds all States that prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel , inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment , and urges all GPE to respect the safeguards concerning the liberty , security and dignity of the person ... ”

The relevant parts of ORG Opinion read as follows .

“ CARDINAL . As regards the terminology used to refer to irregular transfer and detention of prisoners , ORG notes that the public debate frequently uses the term ‘ rendition’ . This is not a term used in international law . The term refers to CARDINAL ORG obtaining custody over a person suspected of involvement in serious crime ( e.g. terrorism ) in the territory of another ORG and/or the transfer of such a person to custody in the first ORG ’s territory , or a place subject to its jurisdiction , or to a third ORG . ‘ Rendition’ is thus a general term referring more to the result – obtaining of custody over a suspected person DATE rather than the means . Whether a particular ‘ rendition’ is lawful will depend upon the laws of the GPE concerned and on the applicable rules of international law , in particular human rights law . Thus , even if a particular ‘ rendition’ is in accordance with the national law of CARDINAL of the GPE involved ( which may not forbid or even regulate extraterritorial activities of ORG organs ) , it may still be unlawful under the national law of the other ORG ) . Moreover , a ‘ rendition’ may be contrary to customary international law and treaty or customary obligations undertaken by the participating ORG ) under human rights law and/or international humanitarian law .

The term ‘ extraordinary rendition’ appears to be used when there is little or no doubt that the obtaining of custody over a person is not in accordance with the existing legal procedures applying in the ORG where the person was situated at the time .

As regards inter - State transfers of prisoners

( f ) There are CARDINAL legal ways for ORG member ORG to transfer a prisoner to foreign authorities : deportation , extradition , transit and transfer of sentenced persons for the purpose of their serving the sentence in another country . Extradition and deportation proceedings must be defined by the applicable law , and the prisoners must be provided appropriate legal guarantees and access to competent authorities . The prohibition to extradite or deport to a country where there exists a risk of torture or ill - treatment must be respected . ”

In this ORG , the Special Rapporteur noted the following .

“ CARDINAL . ... The Special Rapporteur is concerned about situations where persons are detained for a long period of time for the sole purpose of intelligence - gathering or on broad grounds in the name of prevention . These situations constitute arbitrary deprivation of liberty . The existence of grounds for continued detention should be determined by an independent and impartial court . Without delay , the continued detention of such a person triggers a duty for the authorities to establish whether criminal suspicions can be confirmed and , if this is the case , to bring charges against the suspect and to put him on trial . ...

The Special Rapporteur remains deeply troubled that GPE has created a comprehensive system of extraordinary renditions , prolonged and secret detention , and practices that violate the prohibition against torture and other forms of ill - treatment . This system required an international web of exchange of information and has created a corrupted body of information which was shared systematically with partners in the war on terror through intelligence cooperation , thereby corrupting the institutional culture of the legal and institutional systems of recipient GPE .

NORP The human rights obligations of GPE , in particular the obligation to ensure an effective remedy , require that such legal provisions must not lead to a priori dismissal of investigations , or prevent disclosure of wrongdoing , in particular when there are reports of international crimes or gross human rights violations . The blanket invocation of ORG secrets privilege with reference to complete policies , such as the GPE secret detention , interrogation and rendition programme or third - party intelligence ( under the policy of ‘ originator control’ ... ) prevents effective investigation and renders the right to a remedy illusory . This is incompatible with LAW . It could also amount to a violation of the obligation of GPE to provide judicial assistance to investigations that deal with gross human rights violations and serious violations of international humanitarian law . ”

ORG . The relevant part of the above Resolutions read as follows :

“ ... recognised the right of the victims of gross violations of human rights and the right of their relatives to the truth about the events that have taken place , including the identification of the perpetrators of the facts that gave rise to such violations ... ”

The Guidelines address the problem of impunity in respect of acts or omissions that amount to serious human rights violations . They cover States’ obligations under the Convention to take positive action in respect not only of their agents , but also in respect of non - State actors . According to the Guidelines , “ impunity is caused or facilitated notably by the lack of diligent reaction of institutions or ORG agents to serious human rights violations . ... GPE are to combat impunity as a matter of justice for the victims , as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system ” . They provide , inter alia , for the general measures that GPE should undertake in order to prevent impunity , the duty to investigate , as well as the adequate guarantees for persons deprived of their liberty .

This case concerned Mr PERSON , a NORP national who had been captured by GPE forces in GPE and transported in DATE to LOC in GPE . He had been held captive without access to a court or any other form of tribunal or to a lawyer . He contended that the right not to be arbitrarily detained had been infringed . The court found that Mr PERSON ’s detention in LOC , which it referred to as “ a legal black hole ” , had been arbitrary “ in apparent contravention of fundamental principles recognised by both [ NORP and NORP ] jurisdictions and by international law ” .

On DATE , in a case involving a NORP national ( Mr PERSON ) held as an “ enemy combatant ” at FAC , ORG described what the GPE government had argued before it :

“ ... under the government ’s theory , it is free to imprison PERSON indefinitely along with CARDINAL of other citizens of foreign countries , friendly nations among them , and to do with PERSON and these detainees as it will , when it pleases , without any compliance with any rule of law of any kind , without permitting him to consult counsel , and without acknowledging any judicial forum in which its actions may be challenged . Indeed , at oral argument , the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees . To our knowledge , prior to the current detention of prisoners at ORG , the GPE government has never before asserted such a grave and startling proposition . Accordingly , we view ORG as unique not only because the GPE territorial relationship with the [ b]ase is without parallel DATE , but also because it is the first time that the government has announced such an extraordinary set of principles – a position so extreme that it raises the gravest concerns under both NORP and international law . ”

Both these cases were discussed in the DATE Marty Report ( see paragraphs CARDINAL of the Report ) , the relevant parts of which read as follows .

“ CARDINAL . NORP In short , the facts occurred in the following manner : on DATE , Mr Agiza and PERSON , NORP citizens seeking asylum in GPE , were the subject of a decision dismissing the asylum application and ordering their deportation on grounds of security , taken in the framework of a special procedure at ministerial level . In order to ensure that this decision could be executed that DATE , the NORP authorities accepted an NORP offer to place at their disposal an aircraft which enjoyed special over flight authorisations . Following their arrest by the NORP police , the QUANTITY men were taken to FAC where they were subjected , with NORP agreement , to a ‘ security check’ by hooded NORP agents .

The account of this ‘ check’ is especially interesting , as it corresponds in detail to the account given independently by other victims of ‘ rendition’ , including Mr PERSON . The procedure adopted by the NORP team , described in this case by the NORP police officers present at the scene , was evidently well rehearsed : the agents communicated with each other by gestures , not words . Acting very quickly , the agents cut Agiza ’s and PERSON ’s clothes off them using scissors , dressed them in tracksuits , examined every bodily aperture and hair minutely , handcuffed them and shackled their feet , and walked them to the aircraft barefoot .

Prior to deportation of the CARDINAL men to GPE , GPE sought and obtained ‘ diplomatic GPE that they would not be subjected to treatment contrary to the anti - torture convention , would have fair trials and would not be subjected to the death penalty . The ‘ NORP were even backed up by a monitoring mechanism , regular visits by the NORP Ambassador and participation by NORP observers at the trial . ”

The relevant ORG committees found GPE responsible under LAW ORG , concluding that the treatment to which Mr PERSON had been subjected at FAC had been imputable to ORG and had amounted to a violation of LAW ; that GPE had breached its obligations to carry out a prompt , independent and impartial investigation into the events at FAC ; and that the prohibition of refoulement , set out in that Article , had been breached in respect of both Mr Agiza and PERSON .

USA DATE reported that the NORP government had paid CARDINAL United States dollars ( ORG ) to PERSON in compensation for his deportation . The same amount had been agreed to be paid to Mr Agiza ( “ GPE Compensates NORP Ex - terror Suspect ” , GPE Today , DATE ) .

The applicant and third - party interveners submitted a considerable number of articles , reports and opinions of international , foreign and national bodies , non - governmental organisations and media , which raised concerns about alleged unlawful secret detentions and ill - treatment in USrun detention centres in LOC and GPE . A summary of the most relevant sources is given below .

The United Nations High Commissioner for Human Rights stated as follows :

“ All persons detained in this context are entitled to the protection of international human rights law and humanitarian law , in particular the relevant provisions of LAW ( ORG ) and LAW of DATE . The legal status of the detainees and their entitlement to prisoner - of - war ( POW ) status , if disputed , must be determined by a competent tribunal , in accordance with the provisions of LAW . All detainees must at all times be treated humanely , consistent with the provisions of the ORG and LAW . ”

NORP In this memorandum , ORG expressed its concerns that the GPE government had transferred and held people in conditions that might amount to cruel , inhuman or degrading treatment and that violated other minimum standards relating to detention , and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention .

NORP This report included the following passage :

“ ... the fight against terrorism launched by GPE after DATE did not include a vigorous affirmation of those freedoms . Instead , the country has witnessed a persistent , deliberate , and unwarranted erosion of basic rights ... Most of those directly affected have been non - GPE citizens ... ORG has subjected them to arbitrary detention , violated due process in legal proceedings against them , and run roughshod over the presumption of innocence . ”

NORP This report referred to ORG article “ U.S. Decries Abuse but ORG ” which described “ how persons held in the ORG interrogation center at GPE air base in GPE [ were ] being subject to ‘ stress and duress’ techniques , including ‘ standing or kneeling for ORG and being ‘ held in awkward , painful ORG ” .

It further stated :

“ LAW , which GPE has ratified , specifically prohibits torture and mistreatment , as well as sending detainees to countries where such practices are likely to occur . ”

The relevant passage of this report reads as follows :

“ Many ‘ special interest’ detainees have been held in solitary confinement or housed with convicted prisoners , with restrictions on communications with family , friends and lawyers , and have had inadequate access to facilities for exercise and for religious observance , including facilities to comply with dietary requirements . Some told human rights groups they were denied medical treatment and beaten by guards and inmates . ”

This report discussed the transfer of detainees to ORG , GPE in DATE , the conditions of their transfer ( “ prisoners were handcuffed , shackled , made to wear mittens , surgical masks and ear muffs , and were effectively blindfolded by the use of taped - over ski goggles ” ) and the conditions of detention ( “ they were held without charge or trial or access to courts , lawyers or relatives ” ) . It further stated :

“ A number of suspected members of [ ORG ] reported to have been taken into GPE custody continued to be held in undisclosed locations . The GPE government failed to provide clarification on the whereabouts and legal status of those detained , or to provide them with their rights under international law , including the right to inform their families of their place of detention and the right of access to outside representatives . An unknown number of detainees originally in GPE custody were allegedly transferred to third countries , a situation which raised concern that the suspects might face torture during interrogation . ”

Amnesty International reported on the transfer of CARDINAL NORP men , by GPE police , from ORG into GPE custody in FAC , located in LOC , GPE . It expressed its concerns that they had been arbitrarily detained in violation of their rights under the ORG . It also referred to the decision of ORG of GPE , which had found that the transfer had been in violation of LAW No . CARDINAL and LAW No . CARDINAL .

“ Detainees have been held incommunicado in GPE bases in GPE . Allegations of ill - treatment have emerged . Others have been held incommunicado in GPE custody in undisclosed locations elsewhere in the world , and the GPE has also instigated or involved itself in ‘ irregular renditions’ , GPE parlance for informal transfers of detainees between the GPE and other countries which bypass extradition or other human rights protections . ”

“ ORG is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘ PERSON of suspects between countries without any formal human rights protections is in violation of the right to a fair trial , places them at risk of ill - treatment and undermines the rule of law . ”

The ICRC expressed its position as follows :

“ Beyond Guantánamo , the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so - called global war on terror and held in undisclosed locations . Mr PERSON echoed previous official requests from the ICRC for information on these detainees and for eventual access to them , as an important humanitarian priority and as a logical continuation of the organization ’s current detention work in ORG and GPE . ”

ORG on Arbitrary Detention found that the detention of the persons concerned , held in facilities run by the GPE secret services or transferred , often by secretly run flights , to detention centres in countries with which the GPE authorities cooperated in their fight against international terrorism , fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention . In addition , it found that the secrecy surrounding the detention and inter - State transfer of suspected terrorists could expose the persons affected to torture , forced disappearance and extrajudicial killing .

The applicant submitted to ORG the above - mentioned ORG memo , parts of which are no longer classified . The document “ focuses strictly on the topic of combined use of interrogation techniques , [ the purpose of which ] is to persuade High - Value Detainees ( HVD ) to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive , systematic , and cumulative manner to influence HVD behavior , to overcome a detainee ’s resistance posture . The goal of interrogation is to create a state of learned helplessness and dependence ... [ T]he interrogation process can be broken into CARDINAL separate phases : Initial Conditions ; Transition to Interrogation ; and Interrogation ” . As described in the memo , the “ Initial Conditions ” phase concerned “ capture shock ” , “ rendition ” and “ reception at FAC ” . It reads , inter alia :

“ Capture ... contribute to the physical and psychological condition of the ORG prior to the start of interrogation ...

( CARDINAL ) Rendition

... A medical examination is conducted prior to the flight . During the flight , the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds , earmuffs , and hoods ... ”

The “ Interrogation ” phase included descriptions of “ detention conditions ” , “ conditioning techniques ” and “ corrective techniques ” .

The applicant further submitted copies of numerous articles published in NORP newspapers . The most relevant are cited below :

( CARDINAL ) “ Hunger Strike of the ORG in ORG ” , DATE ; “ Secret Agreement with Serious Shortcomings ” , DATE ; “ QUANTITY Frenchmen in FAC under LAW , DATE ; “ In ORG is Performed ” , CARDINAL DATE ; and “ Prisoners without Charges or Rights ” , CARDINAL DATE ( all published in the newspaper PERSON ) ; and

( CARDINAL ) NORP “ ORG Tortures Captured NORP in GPE ” , DATE ; “ USA Forgets about Human Rights in the Course of the ORG - terrorism Campaign ” , DATE ; and “ Oblivion for CARDINAL Prisoners of Guantánamo ” , DATE ( all published in the newspaper ORG ) .

He also provided copies of articles published in GPE newspapers , which reported on “ stress and duress ” techniques employed by the GPE in interrogating detainees at the GPE air base at GPE in GPE ( “ Army Probing Deaths of CARDINAL Afghan Prisoners ” , ORG , DATE , and “ Questioning Terror Suspects in a Dark and ORG ” , ORG , DATE ) . Other articles from GPE and NORP newspapers reported on the rendition to GPE custody of individuals suspected of terrorist - related activities prior to DATE ( “ A ORG - Backed Team Used Brutal Means to Crack Terror Cell ” , ORG , DATE ; “ GPE Behind Secret Transfer of Terror Suspects ” , ORG , DATE ; “ ORG of NORP : Prime Minister Calls GPE Treatment of Terror Suspect ‘ Completely Unacceptable’ ” , ORG , DATE ; “ The Invisible ” , ORG , DATE ; and “ Missing Presumed Guilty : Where Terror Suspects Are Being Held ” , ORG , DATE .

NORP The applicant submitted articles in which journalists reported that the GPE Ambassador in GPE at the time had informed the NORP authorities in DATE that the ORG had wrongly imprisoned the applicant . They further reported that NORP Chancellor PERSON had stated that the GPE Secretary of ORG PERSON had admitted to her , in a private discussion , that the GPE had mistakenly abducted and detained the applicant . According to those articles , GPE representatives had declined to discuss anything about the case with reporters ( “ Wrongful Imprisonment : Anatomy of a ORG Mistake ” , ORG , DATE ; “ NORP Sues ORG , Alleging Torture – [ PERSON after Mistaken - identity ‘ Rendition’ Case ” , ORG , DATE ; “ ORG Government PERSON By PERSON Mistake Comments ” , ORG , DATE ; and “ GPE Weighs if It Played Role in Seizure by GPE ” , ORG , DATE ) . The latter article made reference to an interview with PERSON in which he stated :

“ There is nothing the ORG has done illegally . The man is alive and back home with his family . Somebody made a mistake . That somebody is not GPE . ”

Lastly , in DATE , ORG ( ORG ) reported that the NORP Prime Minister was to announce a settlement of ORG CARDINAL and issue a formal apology to PERSON , a NORP citizen born in GPE , who had been arrested in DATE by GPE authorities at GPE PERSON FAC and deported to GPE . The Prime Minister had already acknowledged that PERSON had suffered a “ tremendous injustice ” ( ORG , “ GPE Reaches MONEY Settlement with Arar ” , CARDINAL DATE ) . In DATE The ORG published an article about the alleged role of GPE in the rendition of suspects in which it was announced that former detainees of NORP nationality in LOC might receive a very large payout from the GPE government , in some cases QUANTITY ( The ORG , “ Torture and Terrorism : Paying a High Price ” , CARDINAL DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE he was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE the applicant was informed that the legislation had not changed and that he was not eligible for such benefits . He subsequently appealed against this decision . On DATE he was advised that his appeal had been struck out because it had been introduced out of time .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE and PERSON , PERSON , PERSON and Geen v. the GPE , nos . CARDINAL , GPE , GPE and GPE , judgment of DATE .