European Court of Human Rights

1. The respondent Government

The Government objected that the applicant had failed to comply with the six-month rule. They argued that he had applied to the domestic prosecuting authorities over four and a half years after the events complained of (the Government cited Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III; Artyomov v. Russia, no. 14146/02, §§ 113-118, 27 May 2010; and Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011). Between May 2004 and October 2008 the applicant had remained totally passive and displayed no initiative in informing the Macedonian law-enforcement authorities about the alleged events. Instead, he had pursued remedies in other jurisdictions. Furthermore, he ought to have known long before October 2008 that any criminal investigation in the respondent State would have been ineffective. In this connection they referred to the absence of any contact between him and the law-enforcement authorities of the respondent State, as well as the absence of State prosecution proprio motu, despite the fact that the prosecuting authorities had already been alerted about his case by their German counterparts. The last inquiries at international and national level, which had ended in January 2007, long before the applicant had submitted his criminal complaint in October 2008, had not led to any finding of fact which would have been of relevance to that complaint. His criminal complaint had not contained any new evidence capable of reviving the State’s duty to investigate ‘his allegations.

Lastly, they argued that the applicant had not been diligent in pursuing the domestic avenues of redress. His lack of diligence was evident because he had taken no initiative in informing himself about the progress made in the investigation (the Government cited Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002). Moreover, he had failed to communicate Mr H.K.’s statement to the domestic authorities and to seek the institution of criminal proceedings by the public prosecutor. Had the applicant requested the prosecution of an identified perpetrator, he would have been allowed to take over the prosecution as a subsidiary complainant if the public prosecutor dismissed his complaint. He had had no such opportunity in the present case, given that his criminal complaint of October 2008 had been filed against an unidentified perpetrator. Furthermore, the applicant could not have challenged the decision dismissing his complaint.

2. The applicant

The applicant submitted in reply that the respondent State had a positive obligation under the Convention to carry out an investigation of its own motion. The internal investigation undertaken by the Ministry of the Interior (see paragraphs 64-66 above) could not be regarded as effective and independent within the meaning of Articles 3 and 13 of the Convention. Moreover, he had had no possibility of knowing about that inquiry, given the failure of the authorities to contact him or make their inquiry public. From the moment he had returned to Germany in late May 2004 he had actively sought to obtain sufficient evidence to build an “arguable case” to present to the national prosecuting authorities. The period of four and a half years between his release and the filing of the criminal complaint in October 2008 had not been excessive. On the contrary, that time had been entirely reasonable, considering that this was a complex case of disappearance, involving international intelligence cooperation, in which the US and Macedonian Governments had agreed to cover up the existence of a secret, multinational criminal enterprise. Accordingly, he had acted diligently and in compliance with the Court’s practice. He had sought in timely fashion to initiate a criminal investigation, but the authorities had not responded expeditiously and instead had secretly rejected his complaint. He had further sought in vain information from the public prosecutor about the progress of the investigation. The public prosecutor had not notified him of her decision rejecting the complaint until 22 November 2010, fourteen months after his application had been lodged with the Court. Since the criminal complaint had been lodged against an unidentified perpetrator, he had been prevented from initiating a private prosecution.

The applicant submitted in conclusion that he had accordingly complied with the six-month time-limit, which had started to run on 23 January 2009, the date when the prosecution of the alleged offences had, according to him, become time-barred.

B. The Court’s assessment

1. General principles established in the Court’s case-law

The Court reiterates that the Convention is an instrument for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory. This concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on respondent Governments, but also has effects on the position of applicants. Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 160, ECHR 2009...).

The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39 and 40, 29 June 2012, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of such acts or their effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).

2. Application of the above principles in the present case

The Court observes that the Government’s objection that the application was out of time was twofold: firstly, that the applicant’s criminal complaint was submitted to the domestic authorities too late and secondly, that the complaint had been an ineffective remedy. In this connection they suggested that the six-month time-limit should be regarded as having started to run when the applicant first became or ought to have become aware of the circumstances which rendered the available domestic remedies ineffective.

In order to answer the Government’s admissibility objection, the Court must assess whether, in the particular circumstances of the present case, a criminal complaint was an effective remedy to be used by the applicant in order to seek redress for his Convention grievances. The answer to that question will be determinative for the calculation of the six-month time-limit.

(a) Whether a criminal complaint was a remedy to be used by the applicant

The Court reiterates that the determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors, such as the diligence and interest displayed by the applicant, as well as the adequacy of the domestic investigation (see Abuyeva and Others v. Russia, no. 27065/05, § 174, 2 December 2010).

The Court notes that it has already found in cases against the respondent State that a criminal complaint is an effective remedy which should be used, in principle, in cases of alleged violations of Article 3 of the Convention (see Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, 15 February 2007; Trajkoski v. the former Yugoslav Republic of Macedonia, no. 13191/02, 7 February 2008; Dzeladinov and Others v. the former Yugoslav Republic of Macedonia, no. 13252/02, 10 April 2008; and Sulejmanov v. the former Yugoslav Republic of Macedonia, no. 69875/01, 24 April 2008). It sees no reasons that could justify departing from this principle, all the more so, in the circumstances of the present case, where allegations of inhuman treatment and unlawful deprivation of liberty purportedly are the result of a secret operation carried out without any legal basis. If the actions of the State agents involved have been illegal and arbitrary, it is for the prosecuting authorities of the respondent State to identify and punish the perpetrators. Alerting the public prosecutor’s office about these actions must be seen as an entirely logical step on the part of the victim.

The Court considers that it could not have been reasonably presumed that, when it was introduced in October 2008, a criminal complaint was a clearly ineffective remedy. There were merely some doubts about its effectiveness, and the applicant was required, under Article 35 § 1 of the Convention, to attempt it before submitting his application to the Court. It would be unreasonable to expect the applicant to bring his complaints to the Court before his position in connection with the matter had been finally settled at domestic level in line with the principle of subsidiarity, according to which it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the effectiveness of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see Varnava and Others, cited above, § 164).

It is true that a considerable time elapsed between 29 May 2004, the date of the applicant’s return to Germany, and the filing of his criminal complaint on 6 October 2008. No other legal action in the respondent State was taken by the applicant prior to that date. In accounting for this delay, the applicant gave an explanation which cannot in itself be considered unreasonable. His case concerned allegations of “extraordinary rendition”, which included allegations of abduction, incommunicado detention and ill-treatment. According to the 2006 Marty report, the authorities of most Council of Europe member States have denied allegations of their participation in rendition operations (see paragraph 43 above). Such policy of obstruction was reaffirmed in the 2007 Marty report (see paragraph 46 above). Given the sensitivity of the matter and the concealment noted above, it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues. Indeed, the inquiries under way in the years prior to October 2008 revealed relevant elements that shed additional light on the applicant’s allegations and constituted a more solid background for his criminal claim. Given the complexity of the case and the nature of the alleged human rights violations at stake, it is understandable that the applicant decided to pursue domestic remedies only when he had some corroborative material available to him.

In any event, the criminal complaint was brought before the prosecution of the alleged offences’ became time-barred (see paragraph 79 above). It was rejected for lack of evidence and not for non-compliance with the admissibility criteria. It does not appear, therefore, that the delay in bringing the complaint rendered it inadmissible, ineffective or otherwise incapable of remedying the situation complained of. On the contrary, by bringing his claim when some corroborative evidence was available at the international level, the applicant furnished the Macedonian judicial authorities with more solid reasons to look further into his allegations.

It follows from the above that a criminal complaint was a remedy that had to be used by the applicant in the circumstances.

(b) The starting point of the six-month time-limit

It thus remains to be determined when the final decision on his criminal complaint became known to the applicant. This date would mark the starting point of the six-month time-limit.

The Court observes that little more than two months elapsed between the submission of the criminal complaint and the decision to reject it. This time, in the Court’s view, cannot be regarded, in the circumstances of the case, so long as to require the applicant to enquire about the steps taken during that period by the domestic authorities. As submitted by the applicant, his further requests for information about the progress made in the investigation were to no avail (see paragraph 132 above).

The public prosecutor rejected the applicant’s criminal complaint on 18 December 2008. According to the applicant, that decision was not brought to his attention until 22 November 2010, despite the fact that the applicable procedural law placed the prosecuting authorities under an obligation to notify victims of their decision to dismiss a complaint within eight days (see paragraphs 86 and 87 above). The Government have not alleged that this requirement was complied with. Therefore, the starting point of the six-month time-limit cannot be fixed at 18 December 2008, the date of the public prosecutor’s decision, but at the date on which the applicant subsequently learned about that decision. In the circumstances of the present case, it is not necessary to ascertain the truthfulness of the applicant’s statement about the service of the decision since the Government have not demonstrated that the applicant received an official notification of the decision or otherwise learned about it before 20 January 2009, that is, six months before he lodged his application with the Court.

In the light of the above, the Court considers that the applicant has complied with the six-month rule under Article 35 § 1 of the Convention and that the Government’s objection that the application is out of time must accordingly be dismissed.

II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

The applicant maintained that he had been subjected to extraordinary rendition by CIA agents assisted, to a large extent, by agents of the respondent State. The international inquiries, the foreign investigations and the applicant’s further efforts to investigate his case provided a wealth of compelling evidence supporting his allegations and rejecting the Government’s explanation as utterly untenable. On the other hand, there had been “not a shred of credible evidence to buttress the Government’s version of events”.

The Government denied the applicant’s allegations as unsubstantiated, submitting various materials in support of that argument (see paragraphs 41 and 65 above). They further denied the existence of any documentation referred to by Mr H.K. (see paragraph 74 above and paragraph 12 of the statement).

B. The Court’s evaluation of the facts

1. General principles

In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention - to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention - conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).

Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 16 December 2008). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).

The Court has already found that these considerations apply also to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII; Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 9 October 2008, and Matayeva and Dadayeva v. Russia, no. 49076/06, § 85, 19 April 2011). Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see Öcalan v. Turkey [GC], no. 46221/99, § 90, ECHR 2005-IV, and Creangă, cited above, § 89).

2. Establishment of the facts in the present case

The Court notes that the applicant’s allegations are contested by the Government on all accounts. Having regard to the conflicting evidence submitted by the parties, the firm denial of the respondent Government of any involvement of State’ agents in the events complained of and the rejection of the applicant’s criminal complaint, the Court considers that an issue arises as to the burden of proof in this case and in particular as to whether it should shift from the applicant onto the respondent Government.

In this connection it emphasises that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010) even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007). In other words, in such a context the Court is prepared to be more critical of the conclusions of the domestic courts. In examining them, the Court may take into account the quality of the domestic proceedings and any possible flaws in the decision-making process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 12 February 2009).

The Court observes first of all that the applicant’s description of the circumstances regarding his alleged ordeal was very detailed, specific and consistent throughout the whole period following his return to Germany. His account remained coherent throughout the international and other foreign inquiries and the domestic proceedings and involved consistent information regarding the place, time and duration of his alleged detention in the former Yugoslav Republic of Macedonia and in the CIA-run detention facility, as well as the treatment to which he was allegedly subjected while in the hotel, during his transfer into the custody of CIA agents at Skopje Airport and in the “Salt Pit” in Afghanistan. In addition to this, there are other aspects of the case which enhance the applicant’s credibility.

In the first place, the Court notes that the applicant’s account was supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities. In this connection the Court notes the following evidence:

(a) aviation logs confirming that a Boeing business jet (then registered by the US Federal Aviation Administration (FAA)) took off from Palma de Mallorca (Spain) on 23 January 2004, landed at Skopje Airport at 8.51 p.m. that evening and left Skopje more than three hours later, flying to Baghdad and then to Kabul;

(b) flight logs confirming that a CIA-chartered Gulfstream aircraft with the tail number N982RK took off from Kabul on 28 May 2004 and landed at a military airbase in Albania called Bezat-Kuçova Aerodrome;

(c) scientific testing of the applicant’s hair follicles, conducted pursuant to a German criminal investigation, confirming that he had spent time in a South Asian country and had been deprived of food for an extended period of time;

(d) geological records that confirm the applicant’s recollection of minor earthquakes during his alleged detention in Afghanistan;

(e) sketches that the applicant drew of the layout of the Afghan prison, which were immediately recognisable to another rendition victim who had been detained by US agents in Afghanistan.

On the basis of that evidence the Marty inquiry was able to conclude that the applicant’s case was “a case of documented rendition” (see paragraph 45 above) and that the Government’s version of events was “utterly untenable” (see paragraph 46 above). The final report of the Fava inquiry “condemned the extraordinary rendition of the German citizen Khaled El-Masri” (see paragraph 49 above). Furthermore, the German Bundestag noted that the applicant’s story was “credible as to the core facts of his detention in Macedonia and his transfer to Afghanistan, as well as his confinement there by United States forces” (see paragraph 60 above).

Secondly, the applicant’s inquiries in the respondent State revealed other relevant elements corroborating his story. In this context the Court draws particular attention to the letter from the Skopje Airport authorities issued on 18 June 2008 (see paragraph 67 above) confirming the Marty inquiry’s findings regarding the route of the Boeing 737 aircraft with the tail number N313P. That document attested, for the first time, that the aircraft had landed at Skopje Airport without any passengers and that it had taken off carrying only one passenger. Other compelling evidence in support of the applicant was the expert report produced by Mr J.G.S., an investigator involved in the Marty and Fava inquiries, in which a detailed factual finding was made regarding events between the applicant’s entry into the former Yugoslav Republic of Macedonia and his transfer into the custody of CIA agents.

Thirdly, the Court attaches particular importance to the relevant material (see paragraphs 98, 103, 106-127 above), which is already a matter of public record, issued by different fora disclosing relevant information about the “rendition programme” run by the US authorities at the time. Even though this material does not refer to the applicant’s case as such, it sheds light on the methods employed in similar “rendition” cases to those described by the applicant.

Lastly, the Court refers to the written statement of Mr H.K., who was, at the relevant time, the Minister of the Interior of the respondent State and soon afterwards became Prime Minister. In the statement, which is the only direct evidence about the events complained of before the Court, the witness confirmed that the Macedonian law-enforcement authorities, acting upon a valid international arrest warrant issued by the US authorities, had detained the applicant, kept him incommunicado and under the constant supervision of UBK (State Intelligence Service) agents in a location in Skopje. He had later been handed over to the custody of a CIA “rendition team” at Skopje Airport and had been flown out of the respondent State on a CIA-operated aircraft. His statement is a confirmation of the facts established in the course of the other investigations and of the applicant’s consistent and coherent description of events.

It is true that the domestic authorities were not given the opportunity to test the evidence of Mr H.K. Nor has the Court itself had the opportunity to probe the details of his statement in the course of the proceedings before it. However, this does not necessarily diminish its probative value, nor does the fact that it came to light after the domestic prosecuting authorities had already rejected the applicant’s criminal complaint prevent the Court from taking it into consideration (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008).

In principle the Court will treat with caution statements given by Government ministers or other high officials, since they would tend to be in favour of the Government that they represent or represented. However, it also considers that statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question, are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavourable light. They may then be construed as a form of admission (see in this context, mutatis mutandis, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, ICJ Reports 1986, p.14, § 64).

The Court therefore considers that the evidence produced by this witness can be taken into account. In this connection it notes that the Government has not presented the Court with any reason to cast doubt on its credibility.

In view of the above, the Court is satisfied that there is prima facie evidence in favour of the applicant’s version of events and that the burden of proof should shift to the respondent Government.

However, the Government have failed to demonstrate conclusively why the above evidence cannot serve to corroborate the allegations made by the applicant. They have not provided a satisfactory and convincing explanation of how the events in question occurred. Nor have they provided a plausible explanation as to what happened to the applicant after their authorities had taken control of him at the Tabanovce border crossing on 31 December 2003. No credible and substantiated explanation has been given by the Government to rebut the presumption of responsibility on the part of their authorities to account for the applicant’s fate since his apprehension on 31 December 2003. The evidence submitted by the Government (see paragraphs 41 and 65 above) is insufficient in this respect. In this connection it is noteworthy that no explanation was given by the Government as to why it had not been made available earlier (see paragraph 45 above and paragraph 113 of the 2006 Marty report). Furthermore, the Government neither commented on nor submitted any objection to the expert report submitted by Mr J.G.S. They further failed to produce the documents regarding the applicant’s case held by the Ministry of the Interior to which Mr H.K. had referred in his statement (see paragraph 74 above). Neither was any written material in this context submitted to the Court. Lastly, the investigation which ended with the rejection of the applicant’s complaint was inconclusive and the Court is unable to draw any benefit from its results.

In such circumstances, the Court considers that it can draw inferences from the available material and the authorities’ conduct (see Kadirova and Others v. Russia, no. 5432/07, §§ 87 and 88, 27 March 2012) and finds the applicant’s allegations sufficiently convincing and established beyond reasonable doubt.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that the respondent State had been responsible for the ill-treatment to which he had been subjected while he was detained in the hotel and for the failure to prevent him from being subjected to “capture shock” treatment when transferred to the CIA rendition team at Skopje Airport. He further complained that the respondent State had been responsible for his ill-treatment during his detention in the “Salt Pit” in Afghanistan by having knowingly transferred him into the custody of US agents even though there had been substantial grounds for believing that there was a real risk of such ill-treatment. In this latter context, he complained that the conditions of detention, physical assaults, inadequate food and water, sleep deprivation, forced feeding and lack of any medical assistance during his detention in the “Salt Pit” amounted to treatment contrary to Article 3 of the Convention. Lastly, he complained that the investigation before the Macedonian authorities had not been effective within the meaning of this Article.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant stated that his unlawful solitary incommunicado detention and interrogation for twenty-three days in the hotel, combined with repeated threats and prolonged uncertainty as to his fate, violated his rights under Article 3 of the Convention. Even without direct physical assaults, the cumulative and acute psychological effects of anguish and stress had been intentionally used for the express purpose of breaking his psychological integrity for the purpose of interrogation, and had been sufficient to drive him to protest by way of a hunger strike for ten days.

1. The applicant

He further argued that the respondent State had been responsible for the treatment to which he had been subjected during his transfer into the CIA’s custody at Skopje Airport because its agents had actively facilitated and failed to prevent that operation. On that occasion, he had been subjected to brutal and terrifying treatment which had been intentionally designed to induce “capture shock” and break his will for the purpose of subsequent interrogation. The violence used to transfer him to the CIA plane had been out of all proportion to any threat that he had posed, and had been inflicted for the purpose of debasing him or breaking his spirit. His treatment both in the hotel and at Skopje Airport amounted to torture.

Furthermore, he submitted that the Macedonian authorities had been under an obligation, when handing him to the CIA, to assess the risk of his ill-treatment in Afghanistan and to obtain appropriate diplomatic assurances. However, they had failed to do so despite the fact that there had been ample publicly available evidence of such ill-treatment. The respondent State had accordingly been responsible under Article 3 of the Convention.

Lastly, the applicant submitted that the domestic authorities had conducted a cursory and grossly inadequate investigation into his arguable allegations. Despite calls from a plethora of international bodies and his complaints, the respondent State had failed to conduct a prompt, impartial and effective investigation, as required under this Article.

2. The respondent Government

The Government repeated their position of complete denial of the applicant’s allegations of being ill-treated. They further challenged the credibility of the expert report of 5 January 2009, which, according to them, had not been conclusive regarding the applicant’s state of health (see paragraph 36 above). For these reasons they required that the Court consider it with the “utmost reserve”.

They further conceded that the investigation carried out by the prosecuting authorities had not been effective, but contended that this was due to the late submission of the applicant’s criminal complaint and the fact that it had been filed against an unidentified perpetrator.

B. Third-party interveners

1. The UN High Commissioner for Human Rights (UNHCHR)

The UNHCHR submitted that the right to the truth was an autonomous right triggered by gross violations, as in the case of enforced disappearances. This right was also embodied in Article 13 and woven into Articles 2, 3 and 5 of the Convention. In enforced disappearances cases, the right to the truth was a particularly compelling norm, in view of the mystery surrounding the fate and whereabouts of the victim, irrespective of the eventual reappearance of the victim. Knowing the truth about gross human rights violations and serious violations of humanitarian law afforded victims, their relatives and close friends a measure of satisfaction. The right to the truth inured to the benefit of the direct victims of the violation, as well as to their relatives and to society at large. Rights holders were entitled to seek and obtain information on various issues, namely the identity of the perpetrators, the progress and results of an investigation and the circumstances and reasons for the perpetration of violations. On the other hand, the right to the truth placed comprehensive obligations on the State, including duties (1) to carry out an effective investigation; (2) to give victims and their relatives effective access to the investigative process; (3) to disclose all relevant information to the victims and the general public; and (4) to protect victims and witnesses from reprisals and threats. Lastly, the UNHCHR argued that the right to the truth was recognised in international law (the Convention on the Protection of All Persons from Enforced Disappearance) and the jurisprudence of the Inter-American Court and the African Commission on Human and Peoples’ Rights.

2. Interights

Interights submitted that the present case presented an opportunity for the Court to recognise as impermissible the system of violations which had become known as “extraordinary rendition” and to determine the State’s responsibility under the Convention. The treatment of the rendered persons in preparation for or during the rendition process (including so-called “capture shock” treatment) and the use of coercive interrogation methods might amount to torture and/or ill-treatment. Extraordinary rendition practices inherently involved the removal of a person from one State to another where there was a real risk of torture or inhuman or degrading treatment. Such removal was prohibited by the principle of non-refoulement, which was recognised in the Court’s case-law (Interights referred to Soering v. the United Kingdom, 7 July 1989, Series A no. 161, and Saadi v. Italy, cited above). Under the non-refoulement principle, responsibility for complicity, participation or other forms of cooperation in “extraordinary renditions” would arise where the State authorities knew or ought to have known that the violations involved in renditions were being committed. In parallel to the “accomplice liability”, under general international law a State could be held responsible where it rendered aid or assistance to another State in the commission of an internationally wrongful act (“accessory responsibility”). The failure to prevent such violations was the most flagrant where the State had given its consent to the acts of foreign agents violating the rights at stake. In addition, acquiescence or connivance in the acts of the foreign agents might engage the State’s responsibility. After the rendition had taken place, the State had an obligation to conduct a prompt and effective investigation into allegations of secret detention and transfer, and to provide reparation, including compensation for non-pecuniary damage flowing from the breach.

3. Redress

Redress stated that an investigation in the context of allegations of extraordinary rendition must be prompt, independent, thorough and capable of leading to the identification and prosecution of the persons responsible; must provide for public scrutiny and victim participation; and must afford victims access to information in order to satisfy their right to the truth. The obligation to investigate was incorporated in both Articles 3 and 5 of the Convention. National security considerations could not operate so as to bar a victim from access to such information. If national security concerns were allowed to prevail over the victim’s right of access to information, the non-derogable and absolute character of Article 3 and the prohibition of unacknowledged detention would be undermined. In this connection it referred to the Council of Europe’s Guidelines of 30 March 2011 on eradicating impunity for serious human rights violations (see paragraph 105 above), according to which “impunity for those responsible for acts amounting to serious human rights violations inflicts additional suffering on victims”. An adequate remedy and reparation must include recognition of, and respect for, the victims of alleged breaches of Articles 3 and 5 of the Convention, so that they, their families and society, as a whole, could know the truth regarding the violations suffered. Besides compensation, other important components which addressed the long-term restorative aims of reparation must also be provided, including satisfaction (acknowledgment of the breach, an expression of regret or a formal apology), guarantees of non-repetition and rehabilitation. In this latter connection, Redress submitted an expert report of 28 March 2011 in which Dr M. Robertson, a chartered clinical psychologist, explained the psychological benefits for the victim of the public disclosure of the truth. According to her, public recognition of the truth and proper acknowledgment through some form of redress could play an integral role in the survivor’s recovery. Conversely, if the truth remained hidden and the perpetrators walked free, that could compound the survivor’s sense of helplessness and struggle to create meaning and obtain closure.

4. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ)

AI and the ICJ submitted that the present case concerned a “US-led ‘secret detentions and renditions system’, a large-scale, organised cross-border system that operated in disregard of national laws, as well as international legal obligations, without any judicial or administrative process, that depended on the co-operation, both active and passive, of many States”. That system was characterised by the enforced disappearance of individuals, which constituted a violation of the right to freedom from torture and inhuman or degrading treatment or punishment. Article 3 of the Convention entailed non-refoulement obligations enjoining Contracting Parties from acting - and/or omitting to act - in ways that would result in the removal of any individuals from their jurisdiction when the Contracting Parties knew or ought to have known that their removal would expose them to a real risk of ill-treatment.

Lastly, they maintained that the right to an effective investigation, under, inter alia, Articles 3 and 5, read together with Article 13, entailed a right to the truth concerning violations of Convention rights perpetrated in the context of the “‘secret detentions and renditions system”‘. This was so not only because of the scale and severity of the human rights violations concerned, but also in the light of the widespread impunity in respect of these practices and the suppression of information about them which persisted in multiple national jurisdictions.

C. The Court’s assessment

In view of the available material, the Court considers that the applicant’s complaints under this Article raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible.

The Court will first examine the applicant’s complaint that there was no effective investigation into his allegations of ill-treatment.

(a) Procedural aspect of Article 3: lack of an effective investigation

(i) General principles

The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII; Corsacov v. Moldova, no. 18944/02, § 68, 4 April 2006; and Georgiy Bykov, cited above, § 60).

The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others, cited above, § 103 and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Boicenco v. Moldova, no. 41088/05, § 123, 11 July 2006).

Furthermore, the investigation should be independent from the executive (see Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).

Lastly, the victim should be able to participate effectively in the investigation in one form or another (see, mutatis mutandis, Oğur, cited above, § 92; Ognyanova and Choban v. Bulgaria, no. 46317/99, § 107, 23 February 2006; Khadzhialiyev and Others v. Russia, no. 3013/04, § 106, 6 November 2008; Denis Vasilyev v. Russia, no. 32704/04, § 157, 17 December 2009; and Dedovskiy and Others v. Russia, no. 7178/03, § 92, ECHR 2008).

(ii) Application of the above principles in the present case

The Court observes that the applicant, by having filed the criminal complaint in October 2008, brought to the attention of the public prosecutor his allegations of ill-treatment by State agents and their active involvement in his subsequent rendition by CIA agents. His complaints were supported by the evidence which had come to light in the course of the international and other foreign investigations. In the Court’s opinion, the applicant’s description of events and the available material were sufficient to raise at least a reasonable suspicion that the said Convention grievances could have been imputed to the State authorities as indicated by the applicant. He has thus laid the basis of a prima facie case of misconduct on the part of the security forces of the respondent State, which warranted an investigation by the authorities in conformity with the requirements of Article 3 of the Convention. In any event, the fact that the applicant lodged a formal criminal complaint was not decisive since the information brought to the knowledge of the authorities about serious violations of Article 3 at the time gave rise ipso facto to an obligation under that Article that the State carries out an effective investigation (see, mutatis mutandis, Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § 64, 19 April 2012).

On the basis of the applicant’s complaint, the public prosecutor contacted the Ministry of the Interior with a view to obtaining information regarding the applicant’s case. The Ministry submitted in reply a report which summarised the account noted in its earlier reports drawn up in view of the requests for legal assistance by the Munich public prosecutor. In December 2008, almost two and a half months later, the Skopje public prosecutor rejected the complaint for lack of evidence. Apart from seeking information from the Ministry, she did not undertake any other investigative measure to examine the applicant’s allegations. The Government confirmed that the public prosecutor had not interviewed the applicant and the personnel working in the hotel at the material time.

Lastly, it is not in dispute that no steps were taken to establish the purpose of the landing of the aircraft N313P, which was suspected of having been used to transfer the applicant from the respondent State to Afghanistan. According to the Marty inquiry, that aircraft had been used in the applicant’s case and had been on a “rendition circuit” involving other detainees transferred under similar circumstances (see paragraph 45 above). Furthermore, the applicant submitted in support of his allegations an official letter in which the Skopje Airport authorities had attested that the aircraft had landed at Skopje Airport on 23 January 2004 without any passengers and that it had taken off the next morning carrying only one passenger (see paragraph 67 above). The applicant’s allegations regarding his transfer to Afghanistan, both in terms of time and manner, were strikingly consistent with the actual course of that aircraft. However, the investigating authorities remained passive and decided not to follow up on that lead. It is surprising that they took no notice of that information and failed to investigate the identity of the passenger who had boarded the aircraft that night. An investigation of the circumstances regarding the aircraft and the passenger would have revealed relevant information capable of rebutting or confirming the well-foundedness of the applicant’s account of events.

The public prosecutor ruled on the sole basis of the papers submitted by the Ministry of the Interior. She did not consider it necessary to go beyond the Ministry’s assertions. When rejecting the applicant’s complaint, she relied exclusively on the information and explanations given by the Ministry, whose agents were, broadly speaking, suspected of having been involved in the applicant’s treatment. According to the Government, the public prosecutor considered that, in the absence of any evidence contradicting the Ministry’s conclusions, no other investigatory measures were necessary (see paragraph 71 above). Having regard to the considerable, at least circumstantial, evidence available at the time of the submission of the applicant’s complaint, such a conclusion falls short of what could be expected from an independent authority. The complexity of the case, the seriousness of the alleged violations and the available material required independent and adequate responses on the part of the prosecuting authorities.

The Government also conceded that the investigation undertaken by the prosecuting authorities had not been effective (see paragraph 174 above).

Having regard to the parties’ observations, and especially the submissions of the third-party interveners, the Court also wishes to address another aspect of the inadequate character of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened. The issue of “extraordinary rendition” attracted worldwide attention and triggered inquiries by many international and intergovernmental organisations, including the UN human rights bodies, the Council of Europe and the European Parliament. The latter revealed that some of the States concerned were not interested in seeing the truth come out. The concept of“‘State secrets” has often been invoked to obstruct the search for the truth (see paragraphs 46 and 103 above). State secret privilege was also asserted by the US government in the applicant’s case before the US courts (see paragraph 63 above). The Marty inquiry found, moreover, that “the same approach led the authorities of ‘the former Yugoslav Republic of Macedonia’ to hide the truth” (see paragraph 46 above).

The Court considers that the prosecuting authorities of the respondent State, after having been alerted to the applicant’s allegations, should have endeavoured to undertake an adequate investigation in order to prevent any appearance of impunity in respect of certain acts. The Court does not underestimate the undeniable complexity of the circumstances surrounding the present case. However, while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, an adequate response by the authorities in investigating allegations of serious human rights violations, as in the present case, may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011; and Association 21 December 1989 and Others v. Romania, nos. 33810/07 and 18817/08, § 135, 24 May 2011). As the Council of Europe stated in its Guidelines of 30 March 2011 on eradicating impunity for serious human rights violations (see paragraph 105 above), “impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system”. The inadequate investigation in the present case deprived the applicant of being informed of what had happened, including of getting an accurate account of the suffering he had allegedly endured and the role of those responsible for his alleged ordeal.

In view of the above considerations, the Court concludes that the summary investigation that has been carried out in this case cannot be regarded as an effective one capable of leading to the identification and punishment of those responsible for the alleged events and of establishing the truth.

Against this background, the Court finds that there has been a violation of Article 3 of the Convention, in its procedural limb.

(b) Substantive aspects of Article 3 of the Convention

(i) Ill-treatment in the hotel and at Skopje Airport

(α) General principles

The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V, and Labita, cited above, § 119).

In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).

In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000-VII).

The obligation on Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). The State’s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III).

(β) Application of the above principles in the present case

In view of its conclusion regarding the shifting of the burden of proof to the Government (see paragraphs 165 and 167 above), the Court has already found that the applicant’s account is sufficiently persuasive and that his allegations under this Article are established “beyond reasonable doubt”. It remains to be ascertained whether the treatment to which the applicant was subjected falls within the ambit of this Article and whether it could be imputed to the respondent State.

Treatment in the hotel

As to the applicant’s treatment in the hotel, the Court observes that he was under constant guard by agents of the Macedonian security forces, interrogated in a foreign language of which he had a limited command, threatened with a gun and consistently refused access to anyone other than his interrogators. Such treatment led the applicant to protest by way of a hunger strike for ten days.

The respondent Government did not provide any justification for such treatment.

It is true that while he was kept in the hotel, no physical force was used against the applicant. However, the Court reiterates that Article 3 does not refer exclusively to the infliction of physical pain but also of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see Iljina and Sarulienė v. Lithuania, no. 32293/05, § 47, 15 March 2011). There is no doubt that the applicant’s solitary incarceration in the hotel intimidated him on account of his apprehension as to what would happen to him next and must have caused him emotional and psychological distress. The applicant’s prolonged confinement in the hotel left him entirely vulnerable. He undeniably lived in a permanent state of anxiety owing to his uncertainty about his fate during the interrogation sessions to which he was subjected. The Court notes that such treatment was intentionally meted out to the applicant with the aim of extracting a confession or information about his alleged ties with terrorist organisations (see Dikme v. Turkey, no. 20869/92, §§ 82 and 95, ECHR 2000-VIII). Furthermore, the threat that he would be shot if he left the hotel room was sufficiently real and immediate which, in itself, may be in conflict with Article 3 of the Convention (see, mutatis mutandis, Campbell and Cosans v. the United Kingdom, 25 February 1982, § 26, Series A no. 48, and Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010).

Lastly, the applicant’s suffering was further increased by the secret nature of the operation and the fact that he was kept incommunicado for twenty-three days in a hotel, an extraordinary place of detention outside any judicial framework (see also paragraph 101 above, and paragraph 236 below).

In view of the foregoing, the Court considers that the treatment to which the applicant was subjected while in the hotel amounted on various counts to inhuman and degrading treatment in breach of Article 3 of the Convention.

Treatment at Skopje Airport

The Court observes that on 23 January 2004 the applicant, handcuffed and blindfolded, was taken from the hotel and driven to Skopje Airport. Placed in a room, he was beaten severely by several disguised men dressed in black. He was stripped and sodomised with an object. He was placed in a nappy and dressed in a dark blue short-sleeved tracksuit. Shackled and hooded, and subjected to total sensory deprivation, the applicant was forcibly marched to a CIA aircraft (a Boeing 737 with the tail number N313P), which was surrounded by Macedonian security agents who formed a cordon around the plane. When on the plane, he was thrown to the floor, chained down and forcibly tranquillised. While in that position, the applicant was flown to Kabul (Afghanistan) via Baghdad. The same pattern of conduct applied in similar circumstances has already been found to be in breach of Article 7 of the ICCPR (see paragraphs 108 and 109 above).

The Court must first assess whether the treatment suffered by the applicant at Skopje Airport at the hands of the special CIA rendition team is imputable to the respondent State. In this connection it emphasises that the acts complained of were carried out in the presence of officials of the respondent State and within its jurisdiction. Consequently, the respondent State must be regarded as responsible under the Convention for acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 318, ECHR 2004-VII).

As to the individual measures taken against the applicant, the Court reiterates that any recourse to physical force which has not been made strictly necessary by the applicant’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Ribitsch, cited above, § 38). In the present case, it notes that the whole operation of transferring the applicant into the custody of the CIA was well rehearsed and that the applicant did not pose any threat to his captors, who clearly outnumbered him. The respondent Government failed to submit any arguments providing a basis for an explanation or justification of the degree of force used at Skopje Airport. Accordingly, the physical force used against the applicant at the airport was excessive and unjustified in the circumstances.

Furthermore, the Court observes that it has already found that the procedure of forcible undressing by the police may amount to such an invasive and potentially debasing measure that it should not be applied without a compelling reason (see Wieser v. Austria, no. 2293/03, § 40, 22 February 2007). No such argument has been adduced to show that the measure applied against the applicant, who was already in a particularly helpless situation, was necessary.

Nor was any explanation given to justify the use of physical restraints on the applicant. The same concerns the use of hooding, which has already been found to cause, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected to it (see Ireland v. the United Kingdom, cited above, §§ 96 and 167).

The forcible administration of a suppository while the applicant was held on the ground without any explanation was not based on any medical considerations. Furthermore, the manner in which the applicant was subjected to that procedure caused serious physical pain and suffering (see Zontul v. Greece, no. 12294/07, § 89, 17 January 2012, and Jalloh, cited above, §§ 69 and 72).

The Court notes that the above-mentioned measures were used in combination and with premeditation, the aim being to cause severe pain or suffering in order to obtain information, inflict punishment or intimidate the applicant (see paragraph 124 above). In the Court’s view, such treatment amounted to torture in breach of Article 3 of the Convention. The respondent State must be considered directly responsible for the violation of the applicant’s rights under this head since its agents actively facilitated the treatment and then failed to take any measures that might have been necessary in the circumstances of the case to prevent it from occurring (see Z and Others v. the United Kingdom, cited above; M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003-XII; and Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, §§ 124 and 125, 3 May 2007).

(ii) Removal of the applicant

(α) General principles

It is the settled case-law of the Court that the decision by a Contracting State to remove a fugitive - and, a fortiori, the actual removal itself - may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the sending Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering, cited above, § 91; Saadi v. Italy, cited above, §§ 125 and 126; Cruz Varas and Others v. Sweden, 20 March 1991, §§ 69-70, Series A no. 201; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I).

In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II, and Saadi v. Italy, cited above, § 128). It must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215).

The existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal; the Court is not precluded, however, from having regard to information which comes to light subsequent to the removal. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant’s fears (see Cruz Varas and Others, cited above, § 76, and Vilvarajah and Others, cited above, § 107).

(β) Application of the above principles in the present case

On the basis of the facts already established to the required standard of proof, the Court must examine whether any responsibility may be attributed to the respondent State for having transferred the applicant into the custody of the US authorities.

In the first place, the Court notes that there is no evidence that the applicant’s transfer into the custody of CIA agents was pursuant to a legitimate request for his extradition or any other legal procedure recognised in international law for the transfer of a prisoner to foreign authorities (see paragraph 102 above). Furthermore, no arrest warrant has been shown to have existed at the time authorising the delivery of the applicant into the hands of US agents (contrast Öcalan v. Turkey [GC], no. 46221/99, § 92, ECHR 2005-IV).

Secondly, the evidence suggests that the Macedonian authorities had knowledge of the destination to which the applicant would be flown from Skopje Airport. Documents issued by the Civil Aviation Administration (see paragraph 41 above) confirm that the aircraft N313P was allowed to land on 23 January 2004 at Skopje Airport. At 10.30 p.m. on 23 January 2004 permission was given for the aircraft to take off for Kabul. At 2.25 a.m. on 24 January 2004 the authorities authorised its onward route to Baghdad.

Thirdly, the Court attaches importance to the reports and relevant international and foreign jurisprudence, and given the specific circumstances of the present case, to media articles, referred to above (see paragraphs 99, 106-122, 126 and 127 above), which constitute reliable sources reporting practices that have been resorted to or tolerated by the US authorities and that are manifestly contrary to the principles of the Convention. The Court has already found some of these reports “worrying” and expressed its grave concerns about the interrogation methods used by the US authorities on persons suspected of involvement in international terrorism and detained in the naval base in Guantánamo Bay and in Bagram (Afghanistan) (see Al-Moayad v. Germany (dec.), no. 35865/03, § 66, 20 January 2007). This material was in the public domain before the applicant’s actual transfer into the custody of the US authorities. It is capable of proving that there were serious reasons to believe that, if the applicant was to be transferred into US custody under the “rendition” programme, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. Consequently, it must be concluded that the Macedonian authorities knew or ought to have known, at the relevant time, that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention. The respondent Government failed to dispel any doubts in that regard (see Saadi v. Italy, cited above, § 129). Material that came to light subsequent to the applicant’s transfer confirms the existence of that risk (see paragraph 103, 108-110, 123, 124, 128 and 129 above).

Fourthly, the respondent State did not seek any assurances from the US authorities to avert the risk of the applicant being ill-treated (see, by contrast, Mamatkulov and Askarov, cited above, §§ 71-78; Al-Moayad, cited above; and Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, § 113, 6 July 2010).

In such circumstances, the Court considers that by transferring the applicant into the custody of the US authorities, the Macedonian authorities knowingly exposed him to a real risk of ill-treatment and to conditions of detention contrary to Article 3 of the Convention.

Having regard to the manner in which the applicant was transferred into the custody of the US authorities, the Court considers that he was subjected to “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see Babar Ahmad and Others, cited above, § 113).

Accordingly the respondent State has violated Article 3 of the Convention on this account.

iii) Conclusion

In the light of the above, the Court concludes that the respondent State is to be held responsible for the inhuman and degrading treatment to which the applicant was subjected while in the hotel, for his torture at Skopje airport and for having transferred the applicant into the custody of the US authorities, thus exposing him to the risk of further treatment contrary to Article 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

The applicant complained under Article 5 of the Convention that he had been detained unlawfully and kept incommunicado, without any arrest warrant having been issued, and that he had never been brought before a judge. He claimed that the respondent State bore direct responsibility for his entire period of captivity between 31 December 2003 and his return to Albania on 28 May 2004. Lastly, he complained that the absence of a prompt and effective investigation by the Macedonian authorities into his credible allegations had been in breach of his Article 5 rights. Article 5 of the Convention reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The applicant argued that the respondent State was responsible for the violation of his rights under this Article, by its own agents and/or foreign agents operating in its territory and under its jurisdiction. His detention in the former Yugoslav Republic of Macedonia without charge or judicial oversight had violated his Article 5 rights. His prolonged disappearance during his subsequent detention in Afghanistan constituted a violation of Article 5, for which the Macedonian Government was responsible. In addition, the respondent Government had violated Article 5 of the Convention by failing to conduct an effective investigation into his credible allegations that he had disappeared for an extended period as a result of a joint operation by Macedonian and US agents.

The Government contested the applicant’s arguments.

B. Third-party interveners

Interights submitted that the abduction, rendition and detention of a person in secret and without notification of the person’s family amounted to enforced disappearance. Such acts constituted forms of secret detention, where the person was not permitted any contact with the outside world (“incommunicado detention”), and where the authorities did not disclose the place of detention or information about the fate of the detainee (“unacknowledged detention”). The obligation of non-refoulement applied to situations involving a real risk of serious violations of the most fundamental human rights, including arbitrary detention and flagrant denial of a fair trial.

AI and the ICJ argued that by their nature and severity, deprivations of liberty carried out in the context of the “secret detentions and renditions system” amounted to flagrant violations of Article 5 of the Convention. In such circumstances, Contracting Parties were required, under the non-refoulement principle also embodied in Article 5 of the Convention, not to remove any individuals from their jurisdiction when the Contracting Parties knew or ought to have known that their removal would expose them to a real risk of flagrant breaches of their right to liberty and security of person. They further stated that by January 2004, there was much credible information in the public domain indicating that the US had been engaging in arbitrary, incommunicado and secret detention, as well as secret detainee transfers, of individuals the authorities suspected of being involved in or having knowledge of international terrorism. Under the non-refoulement principle, States were not absolved from responsibility “for all and any foreseeable consequences” suffered by an individual following removal from their jurisdiction. AI and the ICJ submitted that where an act or omission of a Contracting Party, taking place within its jurisdiction, had a direct causal connection with a rendition involving a continuing violation of Convention rights, taking place partly on its territory and partly elsewhere, both the State’s negative and positive Convention obligations were engaged. In such cases, the responsibility of the State was to refrain from any act that would facilitate the rendition operation and to take such preventive, investigative and remedial measures as were available to it within the limits of its jurisdiction, to prevent, remedy or investigate the continuing violation of the Convention rights.

C. The Court’s assessment

The Court notes that the complaints under this Article are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

(a) General principles established in the Court’s case law

The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311).

It must also be stressed that the authors of the Convention reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial supervision assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.

Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention’s supervisory institutions, whenever they consider that there has been a terrorist offence (see Dikme, cited above, § 64).

The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt, cited above, §§ 123-124).

(b) Application of the above principles in the present case

It is not disputed between the parties that on 31 December 2003 the applicant was taken off the bus on entering the territory of the respondent State and was questioned by Macedonian police officers. He subsequently disappeared and was thereafter not seen until he returned to Germany on 29 May 2004. The Court has already established to the required standard of proof that the applicant was held in the hotel under constant guard by the Macedonian security forces between 31 December 2003 and 23 January 2004, when he was handed over, at Skopje Airport, into the custody of the US authorities. On the latter date he was flown on a CIA-operated flight to Kabul (Afghanistan), where he was detained until his return to Germany.

The Court must examine whether the applicant’s detention in the former Yugoslav Republic of Macedonia was in conformity with the requirements set out in Article 5 of the Convention and whether the applicant’s subsequent detention in Kabul is imputable to the respondent State. It will further examine whether there was an effective investigation into the applicant’s allegations of unlawful and arbitrary detention.

(i) The applicant’s detention in Skopje

In the first place, the Court notes that there was no court order for the applicant’s detention, as required under domestic law (see paragraph 89 above). His confinement in the hotel was not authorised by a court. Furthermore, the applicant’s detention in the respondent State has not been substantiated by any custody records, or, at least, no such documents have been submitted to the Court. The Court has already found that the failure to hold data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 of the Convention (see Kurt, cited above, § 125). During his detention in the respondent State, the applicant did not have access to a lawyer, nor was he allowed to contact his family or a representative of the German Embassy in the respondent State, as required by Article 36 § 1 (b) of the Vienna Convention on Consular Relations (see paragraph 93 above). Furthermore, he was deprived of any possibility of being brought before a court to test the lawfulness of his detention (see paragraphs 84 and 90 above). His unacknowledged and incommunicado detention means that he was left completely at the mercy of those holding him (see Aksoy, cited above, § 83). Lastly, the Court finds it wholly unacceptable that in a State subject to the rule of law a person could be deprived of his or her liberty in an extraordinary place of detention outside any judicial framework, as was the hotel in the present case. It considers that his detention in such a highly unusual location adds to the arbitrariness of the deprivation of liberty (see, mutatis mutandis, Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 118, 21 June 2007).

Having regard to the above finding and the fact that the respondent Government submitted no explanation about the applicant’s detention between 31 December 2003 and 23 January 2004, or any documents by way of justification, the Court concludes that during that period the applicant was held in unacknowledged detention in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of his right to liberty and security as secured by Article 5 of the Convention (see Gisayev v. Russia, no. 14811/04, §§ 152-153, 20 January 2011; Kadirova and Others v. Russia, no. 5432/07, §§ 127-130, 27 March 2012; and Chitayev and Chitayev v. Russia, no. 59334/00, § 173, 18 January 2007).

(ii) The applicant’s subsequent detention

In view of its finding regarding the facts established to the required standard of proof (see paragraphs 165 and 167 above), the Court observes that on 23 January 2004 the Macedonian security forces handed over the applicant at Skopje Airport into the custody of CIA agents who transported him to Afghanistan on a special CIA-operated flight, described by the Marty inquiry as the “well-known rendition plane N313P” (see paragraph 64 of the 2006 Marty report). He remained there until 28 May 2004, when he was transported back to Germany, via Albania.

The Court reiterates that a Contracting State would be in violation of Article 5 of the Convention if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 233, 17 January 2012). In the present case, the Court has already established to the required standard of proof that the applicant was subjected to “extraordinary rendition” (see paragraph 221 above), which entails detention ...“outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see Babar Ahmad and Others, cited above, §§ 113-114). Furthermore, the detention of terrorist suspects within the “rendition” programme run by the US authorities has already been found to have been arbitrary in other similar cases (see paragraphs 103, 106, 113, 119 and 123 above). In such circumstances, the Court considers that it should have been clear to the Macedonian authorities that, having been handed over into the custody of the US authorities, the applicant faced a real risk of a flagrant violation of his rights under Article 5. In this connection the Court reiterates that Article 5 of the Convention lays down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction (see Storck v. Germany, no. 61603/00, §§ 100-101, ECHR 2005-V, and Medova v. Russia, no. 25385/04, § 123, 15 January 2009). The Macedonian authorities not only failed to comply with their positive obligation to protect the applicant from being detained in contravention of Article 5 of the Convention, but they actively facilitated his subsequent detention in Afghanistan by handing him over to the CIA, despite the fact that they were aware or ought to have been aware of the risk of that transfer. The Court considers therefore that the responsibility of the respondent State is also engaged in respect of the applicant’s detention between 23 January and 28 May 2004 (see, mutatis mutandis, Rantsev v. Cyprus and Russia, no. 25965/04, § 207, ECHR 2010).

(iii) Conclusion

Having regard to the above, the Court considers that the applicant’s abduction and detention amounted to “enforced disappearance” as defined in international law (see paragraphs 95 and 100 above). The applicant’s “enforced disappearance”, although temporary, was characterised by an ongoing situation of uncertainty and unaccountability, which extended through the entire period of his captivity (see Varnava and Others, cited above, § 148). In this connection the Court would point out that in the case of a series of wrongful acts or omissions, the breach extends over the entire period starting with the first of the acts and continuing for as long as the acts or omissions are repeated and remain at variance with the international obligation concerned (see Ilaşcu and Others, cited above, § 321, and see also paragraph 97 above).

Having regard to these considerations, the Court concludes that the respondent Government is to be held responsible for violating the applicant’s rights under Article 5 of the Convention during the entire period of his captivity.

(iv) Procedural aspect of Article 5: lack of an effective investigation

The Court has already found that the respondent State did not conduct an effective investigation into the applicant’s allegations of ill-treatment (see paragraphs 186-194 above). For the same reasons, it finds that no meaningful investigation was conducted into the applicant’s credible allegations that he was detained arbitrarily (see Kurt, cited above, § 128).

It accordingly finds that the respondent State has violated Article 5 of the Convention in its procedural aspect.

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The applicant further complained that his secret and extrajudicial abduction and arbitrary detention had violated his rights under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant submitted that his ordeal had been entirely arbitrary, constituting a serious violation of his right to respect for his private and family life under this Article. For over four months he had been detained in solitary confinement, seeing only his guards and interrogators and being separated from his family, who had no idea of his whereabouts. This situation had had a severe effect on his physical and psychological integrity.

The Government contested that argument.

B. The Court’s assessment

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

According to the Court’s case-law, the notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. The Court further recognises that these aspects of the concept extend to situations of deprivation of liberty (see Raninen v. Finland, 16 December 1997, § 63, Reports 1997-VIII). Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family life (see, mutatis mutandis, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130). The Court reiterates that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see Kroon and Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C).

Having regard to its conclusions concerning the respondent State’s responsibility under Articles 3 and 5 of the Convention, the Court considers that the State’s actions and omissions likewise engaged its responsibility under Article 8 of the Convention. In view of the established evidence, the Court considers that the interference with the applicant’s right to respect for his private and family life was not “in accordance with the law”.

Accordingly, it finds that in the present case there has been a violation of Article 8 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant also complained that he had no effective remedy under Article 13 of the Convention in respect of his rights under Articles 3, 5 and 8 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant stated that there had been no effective investigation capable of establishing the facts of his detention and treatment, auxiliary to the investigative element of Article 3 of the Convention. Furthermore, there had been no domestic remedy to challenge the lawfulness of his detention in the former Yugoslav Republic of Macedonia and his transfer into CIA custody, auxiliary to his rights under Article 5. The same applied to his rights under Article 8 of the Convention.

The Government conceded that prior to Mr H.K.’s statement the applicant had not had an effective domestic remedy as required under Article 13 in respect of his complaints under Articles 3 and 5 of the Convention. They further admitted that in the absence of any conclusions of the criminal investigation, the civil avenue of redress, as such, could not be regarded as effective in relation to the applicant’s complaint under Article 8 of the Convention.

B. The Court’s assessment