HUSAYN (ABU ZUBAYDAH) v. POLAND - 7511/13 - Chamber Judgment [2014] ECHR 834 (24 July 2014)

In the case of Husayn (Abu Zubaydah) v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          George Nicolaou,
          Ledi Bianku,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 2 and 3 December 2013 and 8 July 2014,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

A. Written and oral procedure

1. The case originated in an application (no. 7511/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, (“the applicant”), on 28 January 2013.

2. The applicant was represented before the Court by Mr P. Hughes, a lawyer in the non-governmental organisation Interights, Ms H. Duffy, Senior Counsel in Interights, Ms V. Vandova, the Litigation Director of Interights, Mr J. Margulies, member of the Illinois Bar, Mr G.B. Mickum, IV, member of the District of Columbia and Virginia Bars, and Mr B. Jankowski, a lawyer practising in Warsaw.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular:

(i) a breach of Articles 3, 5 and 8 on account of the fact that Poland had enabled the CIA to detain him secretly on its territory, thereby allowing the CIA to subject him to treatment that amounted to torture, incommunicado detention, various forms of metal and physical abuse and deprivation of any access to, or contact with, his family or the outside world;

(ii) a breach of Articles 3, 5 and 6 § 1 on account of the fact that Poland enabled to CIA to transfer him from its territory, thereby exposing him to years of further torture, ill-treatment, secret and arbitrary detention and denial of justice in the hands of the US authorities;

(iii) a breach of Article 13 taken separately and in conjunction with Articles 3, 5 and 8 on account of Poland’s failure to conduct an effective investigation into his allegations of serious violations of the Convention.

4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).

5. On 9 April 2013 the President of the Section gave priority to the application, in accordance with Rule 41.

6. On 9 July 2013 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government and decided that the case would be examined simultaneously with that of Al Nashiri v. Poland (no. 28761/11).

7. The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from the International Commission of Jurists and Amnesty International.

8. Subsequently, the Chamber, having consulted the parties, decided that a public hearing on the admissibility and merits be held simultaneously in both cases (Rule 63 § 1) and invited the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to take part in the hearing. The hearing date was set for 3 December 2013.

The Chamber also decided, of its own motion, to hear evidence from a witness and from experts (Rule A1 of the Annex to the Rules of Court).

9. On 14 October 2013 the Government asked the Court to exclude, under Rule 63 § 2 of the Rules of Court, the press and the public from all oral hearing on the grounds that, in the special circumstances of the cases, the publicity would prejudice the interests of justice.

The applicant, who was asked to submit his comments, opposed the Government’s request, stating that they had failed to provide sufficient reasons.

10. Later, in respect of the Government’s request for the exclusion of the press and the public from all oral hearing, the Chamber decided that that hearing would be public, pursuant to Rule 63 § 1 of the Rules of Court. It further decided that a separate hearing in camera be held on 2 December 2013.

11. In this connection, the President of the Chamber directed that a verbatim record of all the hearings be made under Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly.

12. On 2 December 2013 the Court held a fact-finding hearing and heard evidence from experts and a witness, in accordance with Rule A1 §§ 1 and 5 of the Annex to the Rules of Court. On the same day it subsequently held a hearing in camera under Rule 63 § 2 of the Rules of Court and heard the parties’ submissions on the evidence taken. Those hearings were held in in the Human Rights Building, Strasbourg.

13. A public hearing took place in the Human Rights Building, Strasbourg, on 3 December 2013 (Rule 59 § 3).

There appeared before the Court:

(a) for the respondent Government:

Mr A. Nowak-Far, Undersecretary of State in the Ministry
of Foreign Affairs,

Ms J. Chrzanowska, Agent of the Government before the European Court of Human Rights,

Mr J. Śliwa, Deputy Kraków Prosecutor of Appeal,

Ms A. Mężykowska, co-Agent of the Government before the European Court of Human Rights,

Ms K. Górska-Łazarz, Adviser, Ministry of Foreign Affairs.

(b) for the applicant Al Nashiri:

Ms A. Singh,                                   Counsel,
Mr        M. Pietrzak,                     Counsel,
Mr R. Skilbeck,                Counsel,
Ms        N. Hollander,                Counsel.

Mr        P. Hughes,             Counsel,
Mr        B. Jankowski,                 Counsel,
Ms        H. Duffy,                            Counsel,
Mr        J. Margulies,                   Counsel,
Mr        C. Black,                           Adviser.

(d) for the third party in Al Nashiri:

Mr B. Emmerson, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,

Ms A. Katulu, Adviser.

The Court heard addresses by Mr Nowak-Far, Mr Śliwa, Ms Singh, Mr Pietrzak, Mr Hughes, Mr Jankowski and Mr Emmerson.

14. On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained in the former Fourth Section (Rule 52 § 1).

B. The Polish Government’s failure to produce information and documentary evidence in the present case and in Al Nashiri

1. Background - information and documents requested by the Court in the case of Al Nashiri v. Poland

15. On 10 July 2012, on giving notice of Mr Al Nashiri’s application to the Government, the Chamber requested the Government to supply, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, materials showing the grounds on which the applicant had been granted injured person (pokrzywdzony) status in the investigation opened on 11 March 2008 (see also paragraphs 127-167 below) and indicating whether the fact of his detention in Poland had been established in that investigation and, if so, on what it was based.

In relation to allegations that there was a document (agreement) on the setting up and running of a secret CIA prison on Polish territory prepared by the Polish authorities, the Chamber, in case that document existed, requested the Government to supply a copy on a confidentiality basis under Rule 33 § 2 of the Rules of Court. It also asked the Government whether that document had been included in the evidence gathered during the investigation.

16. In this connection, the Chamber further decided to impose confidentiality, under Rule 33 § 2 of the Rules of Court and in the interests of national security in a democratic society, on the following documents:

1) any documents that might be produced by the Government in the future relating to the alleged CIA rendition operations in Poland or other States and the alleged participation of Poland or other States in that operation;

2) any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who had given evidence, had been charged or were otherwise implicated in the investigation; and

3) any classified materials that in the future could be requested by the Court from the Government or would be submitted of their own motion to the Court.

17. The Government were also informed that should they wish to seek specific security measures to ensure the full secrecy of that material, the Court was prepared to have such wish accommodated through appropriate procedural and practical arrangements.

18. On 5 September 2012 the Government filed their observations on the admissibility and merits of the case. In a cover letter attached to their observations they asked the Court to restrict, under Rule 33 § 2 of the Rules of Court, public access to the Government’s submissions, as well as to the applicant’s observations filed in reply, in the interest of national security in a democratic society and in view of the need to protect the secrecy of the criminal investigation conducted in Poland.

19. The Government also submitted that, since the criminal investigation in Poland was pending, they were not in a position to address in detail the Court’s questions or produce documentary evidence requested by the Court. Instead, in the same letter they stated as follows:

“[The Government] also wish to inform the Court that, to supplement the present position, an additional material will be prepared, by no later than 1 October 2012, by the Appellate Prosecutor’s Office in Kraków with regard to the course of the proceedings no. Ap VDs.12/12/S for Judges of the Court examining the present application. However, due to the need to protect the secrecy of the investigation, the material will be classified. As such, it may be made available only to Judges of the Court specified by name, in a manner and at a location that are in conformity with Polish domestic law governing the protection of classified information.

Furthermore, the Government wish to inform the Court that pursuant to Article 156 § 5 of the Code of Criminal Procedure, in the course of a preparatory proceedings case files may in exceptional circumstances be made available to third parties, subject to the approval of the prosecutor. The Government hereby declare their willingness to offer assistance in the scope of preparing and filing the relevant applications to make case files of preparatory proceedings available to the specified Judges of the Court.”

20. On 25 September 2012 the President of the Chamber acceded to the Government’s request under Rule 33 § 2. However, the Government were reminded that the Chamber had already imposed confidentiality on certain specific documents requested from the Government and that those documents had not been produced. Nor had the Government asked for an extension of the relevant time-limit.

21. In respect of the procedure proposed for the provision of the “additional material” the Government’s attention was drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States. The Government were also reminded that, in accordance with the Court’s case-law, the respondent Government could not rely on domestic legal impediments to justify a failure to furnish the facilities necessary for the Court’s examination of the case. It was also recalled that they had already been informed that the Court was prepared to accommodate their security considerations by means of appropriate security arrangements.

22. By 1 October 2012 the Government had not supplied any “additional material” referred to in their letter of 5 September 2012 (see paragraph 19 above). Nor did they produce the documents initially requested by the Court (see paragraphs 15-17 above).

23. On 31 October 2012 the applicant’s representatives asked the Court to reconsider the status of confidential and ex parte submissions in the case. First, they objected to the Polish Government’s proposal to submit documents to the Court on an ex parte basis, submitting that this was not envisaged in the Convention or the Rules of Court.

Second, they drew the Court’s attention to the fact that the Government had expressly conceded that they could not provide the documents requested by the Court and that their written observations did not contain any information which was subject to the secrecy of the investigation or which otherwise required confidentiality. On the contrary, their submissions had been limited to information largely in the public domain and legal arguments which should not be withheld from the public.

24. The Government, having been invited by the Court to state their position on whether the confidentiality of the parties’ pleadings should be maintained, responded on 29 November 2012. They asked the Court to uphold the restrictions on the public access to the file.

25. In respect of the “additional material” prepared by the Polish prosecution authority, they stated:

“Finally, the Government would like to address the question of ex parte submission which is offered by the Government in their letter of 5 September 2012. The classified document in question was prepared by the Appellate Prosecutor in Kraków in the declared time-limit and this information was passed to the Registrar of the Fourth Section during his visit in Warsaw. Therefore hereby the Government wish to inform that the said material is available to Judges of the Court and the Government wish to kindly ask the Court to specify the name of Judges and appropriate time when they could acquaint themselves with the document.

Simultaneously the Government wish to declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure.

The above-mentioned classified document was not created by the Government as such, but by the Appellate Prosecutor’s Office in Kraków. Therefore, it is available in the Secret Registry of the Prosecutor General Office, an organ independent of the Government. In order to protect the secrecy of the conducted investigation only the authorized persons can acquaint themselves with the deposited material.”

26. On 22 January 2013 the Chamber decided to discontinue the application of Rule 33 § 2 of the Rules of Court and to lift confidentiality in respect of the observations submitted by the Government and the applicant. The parties were informed that this was without prejudice to any future decision of the Chamber or its President to impose confidentiality on any pleadings or materials that might subsequently be produced in the case where reasons were shown to justify such a decision.

27. On 14 February 2013 the Government renewed their proposal to assist the Court in applying to the Kraków Prosecutor of Appeal for access to the investigation file and other materials - to which they referred to as a “special document” - prepared for the Court by the prosecution authority. They stated that they wished to “declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case file”.

In reply, the Court informed the Government that the conditions that they had attached to the Court’s access to those documents and the manner they had proposed for the Court to proceed were not in accordance with the Court’s Rules and practice. It was recalled that, in the Court’s letter of 25 September 2012, the Government’s attention had been drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States.

The Government were accordingly invited to produce the “special document” prepared by the Kraków Prosecutor of Appeal. It was stressed that, as they were aware, that document was to be included in the Court’s file as a material which was considered to be, and remained, confidential pursuant to the Chamber’s decision of 10 July 2012 to impose confidentiality on, inter alia, “any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who ha[d] given evidence, ha[d] been charged or were otherwise implicated in the investigation”. It was once again stressed that the Court was prepared to accommodate the Government’s security considerations by means of all appropriate security arrangements.

Lastly, the Government’s attention was drawn to the Contracting Parties’ duty under Article 38 of the Convention to “furnish all necessary facilities” for the effective conduct of the proceedings before the Court and of the parties’ duties to cooperate with the Court, to comply with an order of the Court and to participate effectively in the proceedings, as provided in Rules 44A, 44B and 44C.

2. Information and documents requested in both cases

28. On 16 September 2013 the Government filed their written observations on the admissibility and merits in the present case. In those observations, in the section entitled “Means available to the Court to acquaint itself with case files of preparatory proceedings” they again suggested that the Court should apply to the domestic authorities for access to the investigation file. They also offered to ask the prosecution authority to prepare for the Court a document, to which they referred to as a “comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S.”. The relevant part of their pleading read as follows:

“[T]he Government would like to indicate that there are means available for the Court to acquaint itself with the case file Ap. V Ds 12/12/S. In the course of domestic preparatory proceedings, case files may be made available, in exceptional circumstances, to third parties, subject to the approval of the prosecutor. The Government wish to declare their willingness to offer the Court their assistance in preparing and filling the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure. ...

Moreover, the Government would like to inform the Court that, upon its request, they will ask the Appellate Prosecutor’s Office in Kraków to draw up a comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S. Such document will be classified in order to protect the secrecy of the investigation. Consequently, the document could be made available to the Court in the seat of the General Prosecutor’s Office in Warsaw or in the Permanent Representation of the Republic of Poland to the Council of Europe in Strasbourg. ...”

29. On 3 October 2013 the Court informed the Government that it had decided to hold an oral hearing in the present case and in the case of Al Nashiri simultaneously. The Government and the applicants were informed that if they intended to rely on any additional documentary evidence at the hearing, it should be submitted at least three weeks before the hearing or be incorporated verbatim in their oral submissions.

With reference to the Government’s observations on “Means available to the Court to acquaint itself with case files of preparatory proceedings” in the present case, in particular regarding the conditions that they attached to the Court’s access to the documents and information necessary for the examination of the cases, including the non-confidential part of the investigation file, the Government were informed that the Chamber, having considered their submissions, wished to remind them of the Polish State’s duties under Article 38 of the Convention (duty to furnish all necessary facilities for the Court’s examination of the case) and under Rule 44A (duty to cooperate with the Court). It also wished to remind them of the content of Rule 44B (failure to comply with an order of the Court) and Rule 44C (failure to participate effectively).

In that context, as already observed in the case of Al Nashiri in regard to similar restrictions imposed by the Government on the Court’s access to evidence, it was recalled that those conditions and the manner proposed for the Court to proceed were not in accordance with the Court’s Rules and practice and that in processing evidence the Court was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States.

The Chamber also decided to remind the Government again that, according to the Court’s established case-law, the Contracting States should furnish all necessary facilities to make possible a proper and effective examination of applications and that they could not rely on domestic impediments to justify a failure to discharge this duty. It was stressed that, in particular, in a case where an application raised issues concerning the effectiveness of the criminal investigation, their duty under Article 38 included the submission of documents from that investigation since the latter were fundamental to the establishment of the facts by the Court.

Accordingly, the Government were invited to produce in respect of both cases, by 30 October 2013, the document referred to in their observations of 16 September 2013 in the present cases as a “comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S”.

30. The Government failed to submit the document within the time-limit set by the Court. No extension of that time-limit was requested.

31. However, in a letter of 30 October 2013 the Government informed the Court that the extract from the non-confidential part of the investigation file had been prepared “by the date indicated by the Court”. They stated that since the document was classified in order to protect the secrecy of the investigation, it would be “made available to the Court pursuant to conditions agreed between the Government and the Court”. They added that the same document would be available to the, in their words, “enumerated” representatives of the two applicants.

32. On 5 November 2013 the Court informed the Government that the Chamber wished them to deliver the document in question to the Registrar of the Fourth Section in the Court’s premises, either by a person authorised by them or by hand-delivered courier by 12 November 2013 at the latest, that is, the date already fixed by the Chamber for submission by the parties of any additional documentary evidence on which they sought to rely at the oral hearing (see paragraph 29 above). The Government were informed that the said time-limit, given the date set for the hearing and the need to ensure the orderly proceedings before the Court, would not be extended. It was recalled that it was for the Court to make the appropriate internal security arrangements ensuring confidentiality of that document and its availability to the representatives of the two applicants.

Consequently, the Government were invited to produce the document in the manner and within the time-limit specified by the Court.

33. The Government failed to produce the document within the prescribed time-limit. In their letter of 12 November 2013 they stated, among other things, as follows:

“As it was already mentioned in the previous Government’s letters the document prepared by the Appellate Prosecutor’s Office in Kraków is classified with the purpose to protect the secrecy of the investigation. The Government offered to produce the document to the Court pursuant to conditions agreed between the Government and the Court. At the same time the Government offered that the same document would be available for the enumerated applicants’ plenipotentiaries.

The Government of Poland are perfectly aware that the Court is the master of the proceeding before it and therefore it is up to the Court to arrange the conditions assuring the confidentiality of submitted documents. However, the general provisions contained in the Court’s Rules of procedure do not indicate in any way the manner in which fragile documents produced by the parties, especially states, to the Court are to be protected. This situation is hardly comparable with internal regulations of other international judicial bodies. ...

Therefore the Government cannot accept the assumption taken by the Court that the conditions for submitting by Polish authorities the relevant document have been fulfilled. The Government reiterate their previous offer according to which the said document will be made available to the judges of the Court and enumerated plenipotentiaries of the applicants in the premises of the Permanent Representation of the Republic of Poland to the Council of Europe or in the office of the General Prosecutor in Warsaw. Furthermore, the Government wishing to come up as far as possible with the expectations of the Court wish to declare that they are ready to bring the document in question to the hearing on 2 [December] Monday 2013 which is to be conducted in camera in order that the Judges of the Court and enumerated plenipotentiaries of the applicants acquaint themselves with its content.”

34. On 2 December 2013, on the closure of the fact-finding hearing (see also paragraph 13 above), the representatives of the Government informed that Court that they had brought the document in question by ad hoc diplomatic post. They further stated, inter alia, that:

“This is a classified document, which would enable the judges to understand better the details of the investigation. It contains more information about the activities of the Polish prosecutor’s office with respect to the cases that are the subject of today’s session. Given the Polish regulations concerning classified documents, access to these materials would be possible today for the judges who are involved in the hearing, the interpreters and the Polish representatives of the parties. ...

[We will be handing the document to the Court], except that the document could be reviewed in the course of the hearing and in accordance with our national rules and it would have to be returned and taken back by us because it is a classified document. ...

[We] could find compatibility between [the Court’s] rules and our rules, but becoming acquainted with the document must be here in se too, here and now. ...”

35. The applicants’ representatives, who were asked to comment on the Government’s proposal, stated that the limitation of access to only Polish representatives of the two applicants would be extremely onerous in terms of their ability to represent effectively their interests. Moreover, the representatives said that they were not aware of any regulation under Polish law that would justify such prohibition. They added that they needed time to become acquainted with the material and that accepting the Government’s proposal would force them to react to a possibly very important document, for submission of which the deadline had long since passed, on an ad hoc and immediate basis.

36. At the fact-finding hearing and the hearing in camera the counsel for Mr Al Nashiri and Mr Abu Zubaydah confirmed that during the investigation they had obtained access to the non-confidential part of the case file and, to some extent, to confidential material contained therein.

37. Having deliberated on the Government’s proposal, the Chamber:

1) reminded the Government that they had already been given several deadlines for submission of the document;

2) reminded them of the Court’s case-law on the cooperation with the Court in order to make the system of individual petition under Article 34 of the Convention effective;

3) reiterated the relevant principles, in particular those regarding the submission of classified documents in the proceedings before the Court, as recently stated in the case of Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 202-206;

4) directed that the Government supply the document in question in a redacted form (for instance, in the manner described in Janowiec and Others, § 206) to the Court and the other parties either on the next day (if they were able to do so) or within two weeks thereafter.

38. The Government failed to produce the requested, redacted document.

In their letter of 17 December 2013, they informed the Court that, although they were well aware of the fact that the Court was the master of its proceedings and that it was up to the Court to decide about conditions that would ensure protection of confidentiality of submitted documents, the Rules of Court did not specify the manner in which sensitive documents from the parties, especially the States, were to be protected. There were no specific provisions regulating how classified documents submitted by the States should be handed over, stored and made available.

On this occasion, they submitted that “the document brought to Strasbourg ... had been drafted on the basis of unclassified files and also, in part, on the basis of classified files”.

The Government further stated that “the Court [had] refused to make use” of any of the means of becoming acquainted with the document in question suggested by them on the grounds that this was inconsistent with the Court’s rules and practice “without indicating the legal basis of its decision and examples of that practice”. They considered that, despite their repeated requests, the Court did not show “any understanding for the Polish Government’s good will arising from a profound respect for the Convention and the Court”.

39. On the expiry of the time-limit fixed by the Chamber for submission of the document in question, the oral and written procedure in the case was closed.

40. Following the closure, on 20 March and 25 April 2014 respectively, the Government asked to Court to include in the case file their additional submissions, in particular information concerning the actions recently undertaken in the investigation. However, the President refused those requests since the pleadings were unsolicited and filed outside the time-limit fixed by the Chamber (Rule 38 § 1 of the Rules of Court and paragraph 6 of the practice direction on written pleadings).

THE FACTS

41. The applicant was born in 1971. He is currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba.

I. EVIDENCE BEFORE THE COURT

42. In order to establish the facts of the case the Court based its examination on documentary evidence which had mostly been supplied by the applicant and, to some extent, supplemented by the Government (see paragraphs 125-134 below), the observations of the parties, material available in the public domain (see paragraphs 207-296 below) and the testimony of experts and a witness who gave oral evidence before the Court at the fact-finding hearing held on 2 December 2013 (see paragraph 12 above).

In the course of that hearing the Court, with the participation of the parties, took evidence from three expert-witnesses, namely:

(1) Mr Giovanni Claudio Fava, in his capacity as the Rapporteur of the European Parliament’s Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of Prisoners (“the TDIP”), the relevant inquiry also being called “the Fava Inquiry” and so referred to hereinafter (see also paragraphs 260-266 below);

(2) Senator Dick Marty, in his capacity as the Parliamentary Assembly of the Council of Europe’s Rapporteur in the inquiry into the allegations of CIA secret detention facilities in the Council of Europe’s member States (“the Marty Inquiry”; see also paragraphs 238-255 below);

(3) Mr J.G.S., in his capacity as an advisor to Senator Marty in the Marty Inquiry (see also paragraphs 318-325 below);

In the course of giving evidence to the Court, Senator Marty and Mr J.G.S. also made a PowerPoint presentation entitled: “Distillation of available documentary evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah” (see also paragraphs 305-312 below).

43. The Court further heard evidence from a witness - Senator Józef Pinior, in connection with his affidavit made in Husayn (Abu Zubaydah) and his involvement in the work of the TDIP (see paragraphs 261, 297 and 326-328 below).

44. The relevant passages from the witnesses’ testimony are reproduced below (see paragraphs 299-332 below).

II. BACKGROUND TO THE CASE

A. The so-called “High-Value Detainees Programme”

45. After 11 September 2001 the US Government began operating a special interrogation and detention programme designated for suspected terrorists. On 17 September 2001 President Bush signed a classified Presidential Finding granting the Central Intelligence Agency (“the CIA”) extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned.

46. On an unspecified later date the CIA established a programme in the Counterterrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as “the CTC program” but, subsequently, it was also called “the High-Value Detainees Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 240-255 below). For the purposes of the present case, it is referred to as “the HVD Programme”.

1. The establishment of the HVD Programme

47. On 24 August 2009 the American authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September 2001-October 2003”, with appendices A-F, had previously been classified as “top secret”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out.

48. The report, which covers the period from September 2001 to mid-October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the Counterterrorist Centre (“CTC”) to detain and interrogate terrorists at sites abroad.

49. The background of the HVD Programme was explained in paragraphs 4-5 as follows:

“4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al’Qaeda high value detainees.

5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al’Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.”

50. As further explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium-Value Detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High-Value Detainees” (also called “HVD”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “High-Value Targets” (“HVT”).

The applicant was the first High-Value Detainee in CIA custody (see also paragraph 49 above).

2. Enhanced Interrogation Techniques

51. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided “the foundation for the policy and administrative decisions that guided the CTC Program”.

52. The EITs are described in paragraph 36 of the 2004 CIA Report as follows:

“ [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.

[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.

[3.] The facial hold is used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes.

[4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe.

[5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.

[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.

[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.

[8.] The application of stress positions may include having the detainee sit on file floor with his legs extended straight out in front of him with his anus raised above his head or kneeling on the floor while leaning back at a 45 degree angle.

[9.] Sleep deprivation will not exceed 11 days at a time.

[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.”

53. Appendix F to the 2004 CIA Report entitled Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003 (“the OMS Guidelines”) refers to “legally sanctioned interrogation techniques”.

It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”.

The techniques included, in ascending degree of intensity:

1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).

2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.

54. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Mr Abu Zubaydah, the applicant in the present case and the first allegedly high-ranking Al’Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for the “test use” in the interrogation of Abu Zubaydah, was declassified in 2009.

It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ...” the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.

55. The US Department of Justice Office of Professional Responsibility Report: “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists” (“the 2009 DOJ Report”) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “black sites” or names of interrogators are blackened. It states, among other things, as follows:

“The issue how to approach interrogations reportedly came to a head after the capture of a senior al’Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘black site’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ...”

56. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboard - the name of the twelfth EITs was redacted.

57. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Mr Abu Zubaydah.

According to the report, “this resulted in the production of an undated and unsigned document entitled “Legal principles Applicable to CIA Detention and Interrogation of Captured Al’Qaeda Personnel”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages:

“...the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al’Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed ...

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.”

The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Mr Abu Zubaydah and the conditions specified in that opinion.

58. As established in paragraph 51 of the report, in November 2002 CTC initiated training courses for CIA agents involved in interrogations. On 28 January 2003 formal “Guidelines on Confinement Conditions for CIA Detainees” and “Guidelines on Interrogations Conducted Pursuant to [REDACTED]” were approved (paragraph 50).

59. The application of the EITs to other terrorist suspects in CIA custody, including Mr Al Nashiri, began in November 2002.

3. Standard procedures and treatment of “High-Value Detainees” in CIA custody (combined use of interrogation techniques)

60. On 30 December 2004 the CIA prepared a background paper on the CIA’s combined interrogation techniques (“the 2004 CIA Background Paper”), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as “top secret” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which High-Value Detainees - the HVD - in CIA custody were routinely subjected from their capture through their rendition and reception at a CIA “black site” to the interrogation. It “focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee’s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation” (see also El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 124, ECHR 2012.

61. The first section of the 2004 CIA Background Paper, entitled “Initial Capture”, was devoted to the process of capture, rendition and reception at the “black site”. It states that “regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur”. The capture is designated to “contribute to the physical and psychological condition of the HVD prior to the start of interrogation”.

62. The said “predictable set of events” following the capture started from rendition, which was described as follows:

“a. The HVD is flown to a Black Site a medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer;

b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.”

63. The description of the next “event” - the reception at the black site - reads as follows:

“The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include:

a. The HVD’s head and face are shaved.

b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival.

c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques.

d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques.”

64. The second section, entitled “Transitioning to Interrogation - The Initial Interview”, deals with the stage before the application of EITs. It reads:

“Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine - in a relatively benign environment - if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation.”

65. The third section, “Interrogation”, which is largely redacted, describes the standard combined application of interrogation techniques defined as 1) “existing detention conditions”, 2) “conditioning techniques”, 3) “corrective techniques” and 4) “coercive techniques”.

1) The part dealing with the “existing detention conditions” reads:

“Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD’s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD.”

2) The “conditioning techniques” are related as follows:

“The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are

a. Nudity. The HVD’s clothes are taken and he remains nude until the interrogators provide clothes to him.

b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.

c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.”

3) The “corrective techniques”, which were applied in combination with the “conditioning techniques”, are defined as those requiring “physical interaction between the interrogator and detainee” and “used principally to correct, startle, or to achieve another enabling objective with the detainee”. They are described as follows:

“These techniques - the insult slap, abdominal slap, facial hold, and attention grasp - are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:

a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee’s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.

b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical,

c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator’s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.

d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.”

4) The “coercive techniques”, defined as those placing a detainee “in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators”, are described as follows:

“These techniques - walling, water dousing, stress positions, wall standing, and cramped confinement - are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:

a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.

b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.

c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator’s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.

d. Wall Standing. The frequency and duration of wall standing are based on the interrogator’s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.

e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques.”

66. The subsequent section of the 2004 CIA Background Paper, entitled “Interrogation - A Day-to-Day Look” sets out a - considerably redacted - “prototypical interrogation” practised routinely at the CIA black site “with an emphasis on the application of interrogation techniques, in combination and separately”.

It reads as follows:

“1) [REDACTED]

2) Session One

a. The HVD is brought into the interrogation room, and under the direction of the interrogators, stripped of his clothes, and placed into shackles.

b. The HVD is placed standing with his back to the walling wall. The HVD remains hooded.

c. Interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [REDACTED].

d. The interrogators remove the HVD’s hood and [REDACTED] explain the HVD’s situation to him, tell him that the interrogators will do what it takes to get important information, and that he can improve his conditions immediately by participating with the interrogators. The insult slap is normally used as soon as the HVD does or says anything inconsistent with the interrogators’ instructions.

e. [REDACTED] If appropriate, an insult slap or abdominal slap will follow.

f. The interrogators will likely use walling once it becomes clear that the HVD is lying, withholding information, or using other resistance techniques.

g. The sequence may continue for several more iterations as the interrogators continue to measure the HVD’s resistance posture and apply a negative consequence to the HVD’s resistance efforts.

h. The interrogators, assisted by security officers (for security purposes), will place the HVD in the center of the interrogation room in the vertical shackling position and diaper the HVD to begin sleep deprivation. The HVD will be provided with Ensure Plus - (liquid dietary supplement) - to begin dietary manipulation. The HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The first interrogation session terminates at this point.

i. [REDACTED]

j. This first interrogation session may last from 30 minutes to several hours based on the interrogators’ assessment of the HVD’s resistance posture. [REDACTED] The three Conditioning Techniques were used to bring the HDV to a baseline, dependent state conducive to meeting interrogation objectives in a timely manner. [REDACTED].

3) Session Two.

a. The time period between Session One and Session Two could be as brief as one hour or more than 24 hours [REDACTED] In addition, the medical and psychological personnel observing the interrogations must advise that there are no contra indications to another interrogation session.

b. [REDACTED]

c. Like the first session, interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [REDACTED].

d. [REDACTED] Should the HVD not respond appropriately to the first questions, the interrogators will respond with an insult slap or abdominal slap to set the stage for further questioning.

e. [REDACTED] The interrogators will likely use walling once interrogators determine the HVD is intent on maintaining his resistance posture.

f. The sequence [REDACTED] may continue for multiple iterations as the interrogators continue to measure the HVD’s resistance posture.

g. To increase the pressure on the HVD, [REDACTED] water douse the HVD for several minutes. [REDACTED].

h. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point,

i. As noted above, the duration of this session may last from 30 minutes to several hours based on the interrogators’ assessment of the HVD’s resistance posture. In this example of the second session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, and abdominal slap. The three Conditioning Techniques were used to keep the HVD at a baseline, dependent state and to weaken his resolve and will to resist. In combination with these three techniques, other Corrective and Coercive Techniques were used throughout the interrogation session based on interrogation objectives and the interrogators’ assessment of the HVD’s resistance posture.

4) Session Three

a. [REDACTED] In addition, the medical and psychological personnel observing the interrogations must find no contra indications to continued interrogation.

b. The HVD remains in sleep deprivation, dietary manipulation and is nude.[REDACTED].

c. Like the earlier sessions, the HVD begins the session standing against the walling wall with the walling collar around his neck.

d. If the HVD is still maintaining a resistance posture, interrogators will continue to use walling and water dousing. All of the Corrective Techniques, (insult slap, abdominal slap, facial hold, attention grasp) may be used several times during this session based on the responses and actions of the HVD. Stress positions and wall standing will be integrated into interrogations. [REDACTED]. Intense questioning and walling would be repeated multiple times.[REDACTED].

Interrogators will often use one technique to support another. As an example, interrogators would tell an HVD in a stress position that he (HVD) is going back to the walling wall (for walling) if he fails to hold the stress position until told otherwise by the HVD. This places additional stress on the HVD who typically will try to hold the stress position for as long as possible to avoid the walling wall. [REDACTED] interrogators will remind the HVD that he is responsible for this treatment and can stop it at any time by cooperating with the interrogators.

e. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point.

In this example of the third session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, abdominal slap, stress positions, and wall standing.

5) Continuing Sessions.

[REDACTED] Interrogation techniques assessed as being the most effective will be emphasized while techniques with little assessed effectiveness will be minimized.

a. [REDACTED]

b. The use of cramped confinement may be introduced if interrogators assess that it will have the appropriate effect on the HVD.

c. [REDACTED]

d. Sleep deprivation may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit. Sleep deprivation will end sooner if the medical or psychologist observer finds contra indications to continued sleep deprivation.

e. [REDACTED].

f. [REDACTED]

g. The interrogators’ objective is to transition the HVD to a point where he is participating in a predictable, reliable, and sustainable manner. Interrogation techniques may still be applied as required, but become less frequent. [REDACTED]

This transition period lasts from several days to several weeks based on the HVDs responses and actions.

h. The entire interrogation process outlined above, including-transition, may last for thirty days. [REDACTED] On average, the actual use of interrogation technique can vary upwards to fifteen days based on the resilience of the HVD [REDACTED]. If the interrogation team anticipates the potential need to use interrogation techniques beyond the 30-day approval period, it will submit a new interrogation plan to HQS [CIA headquarters] for evaluation and approval.”

4. Conditions of detention at CIA detention facilities

67. From 2003 to 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees, signed by the CIA Director, George Tenet, on 28 January 2003.

According to the guidelines, at least the following “six standard conditions of confinement” were in use in 2003:

(i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility;

(ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair;

(iii) incommunicado, solitary confinement;

(iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees’ cells and 68-72 dB in the walkways;

(v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminate the cell to about the same brightness as an office;

(vi) use of leg shackles in all aspects of detainee management and movement.

68. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows:

“... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ...

Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee’s ability to interact with others. ...”

5. Closure of the HVD Programme

69. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantànamo Bay.

B. Role of Jeppesen Company

70. Jeppesen Dataplan is a subsidiary of Boeing based in San Jose, California. According to the company’s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients.

71. In the light of reports on rendition flights (see paragraphs 240-255 and 281-285 below), a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism.

72. In 2007, the American Civil Liberties Union (“the ACLU”) filed a federal lawsuit against Jeppesen Dataplan, Inc. on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.

In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9^th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government’s appeal, an 11-judge panel of the 9^th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU’s request to hear the lawsuit.

C. Military Commissions

1. Military Order of 13 November 2001

73. On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. It was published in the Federal Register on 16 November 2001.

The relevant parts of the order read as follows:

“Sec. 2. Definition and Policy.

(a) The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaeda;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order.

(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. ...”

Sec. 3 Detention Authority of the Secretary of Defense. Any individual subject to this order shall be -

(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; ...

Sec.4 Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order

(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”

2. Military Commission Order no. 1

74. On 21 March 2002 D. Rumsfeld, the US Secretary of Defense at the relevant time, issued the Military Commission Order No. 1 (effective immediately) on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism.

The relevant parts of the order read as follows:

“2. ESTABLISHMENT OF MILITARY COMMISSIONS

In accordance with the President’s Military Order, the Secretary of Defense or a designee (Appointing Authority’) may issue orders from time to time appointing one or more military commissions to try individuals subject to the President’s Military Order and appointing any other personnel necessary to facilitate such trials.

4. COMMISSION PERSONNEL

A. Members

(1) Appointment

The Appointing Authority shall appoint the members and the alternate member or members of each Commission. ...

(2) Number of Members

Each Commission shall consist of at least three but no more than seven members, the number being determined by the Appointing Authority. ...

(3) Qualifications

Each member and alternate member shall be a commissioned officer of the United States armed forces (‘Military Officer), including without limitation reserve personnel on active duty, National Guard personnel on active duty in Federal service, and retired personnel recalled to active duty. ...

6. CONDUCT OF THE TRIAL

...

B. Duties of the Commission during Trial

The Commission shall:

(1) Provide a full and fair trial.

(2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence, and preventing any unnecessary interference or delay.

(3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President’s Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer’s own initiative or based upon a presentation, including an ex parte, in camera presentation by either the Prosecution or the Defense. A decision to close a proceeding or portion thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or any other person, but Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. Except with the prior authorization of the Presiding Officer and subject to Section 9, Defense Counsel may not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof. Open proceedings may include, at the discretion of the Appointing Authority, attendance by the public and accredited press, and public release of transcripts at the appropriate time. Proceedings should be open to the maximum extent practicable. Photography, video, or audio broadcasting, or recording of or at Commission proceedings shall be prohibited, except photography, video, and audio recording by the Commission pursuant to the direction of the Presiding Officer as necessary for preservation of the record of trial.

...

D. Evidence

(1) Admissibility

Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other member of the Commission so requests at the time the Presiding Officer renders that opinion, the opinion of the Commission rendered at that time by a majority of the Commission), the evidence would have probative value to a reasonable person.

(5) Protection of Information

(a) Protective Order

The Presiding Officer may issue protective orders as necessary to carry out the Military Order and this Order, including to safeguard ‘Protected Information’, which includes:

(i) information classified or classifiable pursuant to reference (d);

(ii) information protected by law or rule from unauthorized disclosure;

(iii) information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses;

(iv) information concerning intelligence and law enforcement sources, methods, or activities; or (v) information concerning other national security interests. As soon as practicable, counsel for either side will notify the Presiding Officer of any intent to offer evidence involving Protected Information.

(b) Limited Disclosure

The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as necessary to protect the interests of the United States and consistent with Section 9, direct

(i) the deletion of specified items of Protected Information from documents to be made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel;

(ii) the substitution of a portion or summary of the information for such Protected Information; or

(iii) the substitution of a statement of the relevant facts that the Protected Information would tend to prove.

The Prosecution’s motion and any materials submitted in support thereof or in response thereto shall, upon request of the Prosecution, be considered by the Presiding Officer ex parte, in camera, but no Protected Information shall be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel.

...

H. Post-Trial Procedures

...

(2) Finality of Findings and Sentence

A Commission finding as to a charge and any sentence of a Commission becomes final when the President or, if designated by the President, the Secretary of Defense makes a final decision thereon pursuant to Section 4(c)(8) of the President’s Military Order and in accordance with Section 6(H)(6) of this Order. An authenticated finding of Not Guilty as to a charge shall not be changed to a finding of Guilty. Any sentence made final by action of the President or the Secretary of Defense shall be carried out promptly. Adjudged confinement shall begin immediately following the trial.

...

(4) Review Panel

The Secretary of Defense shall designate a Review Panel consisting of three Military Officers, which may include civilians commissioned pursuant to reference (e). At least one member of each Review Panel shall have experience as a judge. The Review Panel shall review the record of trial and, in its discretion, any written submissions from the Prosecution and the Defense and shall deliberate in closed conference. The Review Panel shall disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission. Within thirty days after receipt of the record of trial, the Review Panel shall either

(a) forward the case to the Secretary of Defense with a recommendation as to disposition, or

(b) return the case to the Appointing Authority for further proceedings, provided that a majority of the Review Panel has formed a definite and frim conviction that a material error of law occurred.

(5) Review by the Secretary of Defense

The Secretary of Defense shall review the record of trial and the recommendation of the Review Panel and either return the case for further proceedings or, unless making the final decision pursuant to a Presidential designation under Section 4(c)(8) of the President’s Military Order, forward it to the President with a recommendation as to disposition.

(6) Final Decision

After review by the Secretary of Defense, the record of trial and all recommendations will be forwarded to the President for review and final decision (unless the President has designated the Secretary of Defense to perform this function). If the President has so designated the Secretary of Defense, the Secretary may approve or disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof. If the Secretary of Defense is authorized to render the final decision, the review of the Secretary of Defense under Section 6(H)(5) shall constitute the final decision.”

3. The 2006 Military Commissions Act and the 2009 Military Commissions Act

75. On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006), that the military commission “lacked the power to proceed” and that the scheme violated the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions. Consequently, the Military Commission order was replaced by the Military Commissions Act of 2006 (“the MCA 2006”), signed into law by President Bush on 17 October 2006.

On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 (“the MCA 2009”).

On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings.

The rules include some improvements of the procedure but they still continue, as did the rules applicable in 2001-2009, to permit the introduction of coerced statements under certain circumstances if “use of such evidence would otherwise be consistent with the interests of justice”.

D. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate

76. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA’s activities involved in the HVD Programme, in particular the secret detention at foreign black sites and the use of the EITs.

The Committee’s report, entitled “Study of the Central Intelligence Agency’s Detention and Interrogation” was finished towards the end of 2012. The report describes the CIA’s Detention and Interrogation Program between September 2001 and January 2009. It reviewed operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of the more than 100 individuals detained by CIA during that period.

77. On 13 December 2012, Senator Dianne Feinstein, chairman of the Intelligence Committee gave a statement, which, in so far as relevant, read as follows:

“The committee’s report is more than 6,000 pages long. It is a comprehensive review of the CIA’s detention program that includes details of each detainee in CIA custody, the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy - or inaccuracy - of CIA descriptions about the program to the White House, Department of Justice, Congress and others. With this vote, the committee also approved the report’s list of 20 findings and conclusions.

The report is based on a documentary review of more than 6 million pages of CIA and other records, extensively citing those documents to support its findings. There are more than 35,000 footnotes in the report. I believe it to be one of the most significant oversight efforts in the history of the United States Senate, and by far the most important oversight activity ever conducted by this committee.

Following the committee’s vote today, I will provide the report to President Obama and key executive branch officials for their review and comment. The report will remain classified and is not being released in whole or in part at this time. The committee will make those decisions after receiving the executive branch comments.

The report uncovers startling details about the CIA detention and interrogation program and raises critical questions about intelligence operations and oversight. I look forward to working with the president and his national security team, including the Director of National Intelligence and Acting Director of the Central Intelligence Agency, to address these important issues, with the top priority being the safety and security of our nation. ...

I strongly believe that the creation of long-term, clandestine ‘black sites’ and the use of so-called ‘enhanced-interrogation techniques’ were terrible mistakes. The majority of the Committee agrees. ...”

78. On 3 April 2014 the Intelligence Committee decided to declassify the report’s executive summary and 20 findings and conclusions. In this connection, Senator Dianne Feinstein issued statement which read, in so far as relevant, as follows:

“The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.

The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ...

The report also points to major problems with CIA’s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ...

The full 6,200-page full report has been updated and will be held for declassification at a later time.”

79. The report was later sent to the CIA for the declassification review. The declassification procedure is still pending.

III. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. Restrictions on the applicant’s communication with the outside world

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

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

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

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

B. The applicant’s capture in Pakistan and his subsequent detention in Thailand (27 March 2002 - 4 December 2002)

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

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

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

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

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

86. After his arrest, the applicant was transferred to a secret CIA detention facility in Thailand code-named “Cat’s Eye” (often written as one word “Catseye” in CIA documents), where he was interrogated by CIA agents and where a variety of EITs were tested on him. Mr Al Nashiri was detained in the same facility as from 15 November 2002 (see paragraphs 89-90 below and Al Nashiri v. Poland, no. 28761/11, judgment of 24 July 2014, §§ 85 and 88). At this site, the interrogations of both applicants were videotaped.

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

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

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

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

It further added:

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

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

Paragraph 7 of the 2004 CIA Report read:

“7. [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.”

Paragraphs 74-76 of the same report read:

“ 74. [REDACTED] psychologist/interrogators [REDACTED] led each interrogation of Abu Zubaydah and Al-Nashiri where EITs were used. The psychologist/interrogators conferred with [REDACTED] team members before each interrogation session. Psychological evaluations were performed by [REDACTED] psychologists. ...

76. [REDACTED] ...

On the twelfth day of interrogation [REDACTED] psychologist/interrogators administered two applications of the waterboard to Al-Nashiri during two separate sessions. Enhanced interrogation of Al-Nashiri continued through 4 December 2002.”

The relevant part of the 2009 DOJ Report read:

“On November 15, 2002, a second prisoner, Abd Al-rahim Al-Nashiri was brought to [REDACTED] facility. [REDACTED] psychologist/interrogators immediately began using EITs, and Al Nashiri reportedly provided lead information about other terrorists during the first day of interrogation. On the twelfth day, the psychologist/interrogators applied the waterboard on two occasions, without achieving any results. Other EITs continued to be used, and the subject eventually became compliant. [REDACTED] 2002, both Al Nashiri and Abu Zubaydah were moved to another CIA black site, [REDACTED] ...”

90. According to a Vaughn Index released by the CIA to the ACLU, on 3 December 2002 a cable was sent to a CIA site from the CIA Headquarters entitled “Closing of facility and destruction of classified information”. The cable text itself, released in a redacted form, instructed the CIA station to create an inventory of videotapes of interrogation sessions with Mr Al Nashiri and Mr Abu Zubaydah. Another cable, sent on 9 December 2002, recorded that the inventory had been carried out:

“On 3 Dec[ember] [20]02, [redacted] conducted an inventory of all videotapes and other related materials created at [redacted] during the interrogations of al Qaeda detainees Abu Zubaydah and al Nashiri.”

91. In the total list of cables from “FIELD” [CIA station] to “HQTRS” [CIA headquarters] relating to Mr Al Nashiri’s and Mr Abu Zubaydah’s interrogation at the Cat’s Eye site, no cables were sent after 4 December 2002. It transpires from the declassified CIA documents that that site was closed on that date.

C. Transfer to Poland and detention in the “black site” in Stare Kiejkuty (4/5 December 2002 - 22 September 2003)

1. Transfer (4-5 December 2002)

92. The applicant submitted that he had been transferred from Thailand to Poland under the HVD Programme on 5 December 2002.

93. On 4 December 2002 a CIA contracted aircraft, a Gulfstream jet (capacity for 12 passengers) registered as N63MU with the US Federal Aviation Authority and operated by First Flight Management/Airborne Inc., flew the applicant and Mr Al Nashiri from Thailand to the Szymany military airbase in Poland.

The flight flew from Bangkok via Dubai and landed in Szymany, Poland, on 5 December 2002 at 14h56. It departed from there on the same day at 15:43. The flight was disguised under multiple layers of secrecy characterising flights that the CIA chartered to transport persons under the HVD Programme (see also paragraph 252 below).

94. The collation of data from multiple sources, including flight plan messages released by Eurocontrol, invoices, and responses to information disclosure requests made on behalf of the applicant and/or Mr Al Nashiri (see also paragraphs 252, 265, 281-285 and 310-311 below), confirmed that between 3 and 6 December 2002, the N63MU had travelled the following routes:

Take-off Destination Date of flights

Elmira, New York (KELM) Washington, DC (KIAD) 3 Dec 2002

Washington, DC (KIAD) Anchorage, Alaska (PANC) 3 Dec 2002

Anchorage, Alaska (PANC) Osaka, Japan (RJBB) 3 Dec 2002

Osaka, Japan (RJBB) Bangkok, Thailand (VTBD) 4 Dec 2002

Bangkok,Thailand (VTBD) Dubai,UAE (OMDB/OMDM) 4 Dec 2002

Dubai,UAE (OMDB/OMDM) Szymany, Poland (EPSY) 5 Dec 2002

Szymany, Poland (EPSY) Warsaw, Poland (EPWA) 5 Dec 2002

Warsaw, Poland (EPWA) London Luton, UK (EGGW) 6 Dec 2002

LondonLuton, UK (EGGW) Washington, DC (KIAD) 6 Dec 2002

Washington, DC(KIAD) Elmira,New York KELM 6 Dec 2002

95. A letter dated 23 July 2010 from the Polish Border Guard to the Helsinki Foundation for Human Rights confirms that the airplane N63MU landed at Szymany airport on 5 December 2002 with eight passengers and four crew and departed from there on the same day with no passengers and four crew (see also paragraph 286 below).

96. A 2007 Council of Europe report (“the 2007 Marty Report” - see also paragraph 252 below) drawn up by Senator Marty in the Marty Inquiry identifies N63MU as a “rendition plane ” that arrived in Szymany from Dubai at 14h56 on 5 December 2002.

97. The routine procedure applied on arrival of the CIA aircraft in Szymany airport was described by one of the witnesses heard in the course of the Fava Inquiry, a certain Ms M.P. who was at that time the Szymany airport manager (see paragraphs 287-296 below).

It was also described in the Fava Report (see paragraph 265 below) and the 2007 Marty Report (see paragraph 254 below)

98. In accordance with that routine procedure, the applicant and Mr Al Nashiri were apparently taken to a van provided by the Polish authorities and driven to the Polish intelligence’s training base in Stare Kiejkuty, which is located close to the Szczytno airport.

99. No official records of the Polish Border Guard disclosed Mr Abu Zubaydah’s and Mr Al Nashiri’s presence on Polish territory (see also paragraph 322 below).

2. Detention and ill-treatment (5 December 2002 - 22 September 2003)

100. During his detention in Stare Kiejkuty from 5 December 2002 to 22 September 2003 the applicant was subjected to the further application of EITs and various other forms of ill-treatment and abuse. He was also deprived of any contact with his family or the outside world.

101. In that regard, the applicant relied on the only public source giving his own description of his experience in CIA custody, which was related in the International Committee for the Red Cross (“the ICRC”) Report on the Treatment of Fourteen “High-Value Detainees” in CIA Custody of February 2007 (“the 2007 ICRC Report”), based on interviews with the applicant and 13 other High-Value Detainees, including Mr Al Nashiri, after they were transferred to Guantànamo Bay (for more details, see paragraphs 275-276 below).

Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody “regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003”.

The applicant’s account of the abuse that he endured in CIA custody as rendered in the 2007 ICRC Report read, in so far as relevant, as follows:

“I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given ensure to drink. My head and beard were shaved every day.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.”

102. The fourteen High-Value Detainees, including Mr Abu Zubaydah, gave the ICRC the following, common description of their detention at the CIA black sites:

“1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION

Throughout the entire period during which they were held in the CIA detention program - which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years - the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real - let alone regular - contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.

None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. ...

In addition, the detainees were denied access to an independent third party. ... ”

103. The 2007 ICRC Report gave a detailed account of “other methods of ill-treatment” inflicted on the 14 detainees. For the purposes of clarity of its report, each method of ill-treatment was detailed separately. However, each specific method was in fact applied in combination with other methods, either simultaneously, or in succession. Not all the methods were used on all detainees.

Mr Abu Zubaydah was the only one who stated that all the methods described below had been used on him. The description of those methods reads as follows:

“1.3. OTHER METHODS OF ILL-TREATMENT

... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.

The methods of ill-treatment alleged to have been used include the following:

• Suffocation by water poured over a cloth placed over the nose and mouth, alleged by three of the fourteen.

• Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.

• Beatings by use of a collar held around the detainees’ neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen.

• Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen.

• Confinement in a box to severely restrict movement alleged in the case of one detainee.

• Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months.

• Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time.

• Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water.

• Prolonged shackling of hands and/or feet was alleged by many of the fourteen.

• Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen.

• Forced shaving of the head and beard, alleged by two of the fourteen.

• Deprivation/restricted provision of solid food from 3 days to 1 month after arrest, alleged by eight of the fourteen.

In addition, the fourteen were subjected for longer periods to a deprivation of access to open air, exercise, appropriate hygiene facilities and basic items in relation to interrogation, and restricted access to the Koran linked with interrogation. ...”

104. The description of the circumstances in which those methods were applied to the applicant read, in so far as relevant, as follows:

“1.3.1. SUFFOCATION BY WATER

Three of the fourteen alleged that they were repeatedly subjected to suffocation by water. They were: Mr Abu Zubaydah, Mr Khaled Shaik Mohammed and Mr Al Nashiri.

In each case, the person to be suffocated was strapped to a tilting bed and a cloth was placed over the face, covering the nose and mouth. Water was then poured continuously onto the cloth, saturating it and blocking off any air so that the person could not breathe. This form of suffocation induced a feeling of panic and the acute impression that the person was about to die. In at least one case, this was accompanied by incontinence of the urine. At a point chosen by the interrogator the cloth was removed and the bed was rotated into a head-up and vertical position so that the person was left hanging by the straps used to secure him to the bed. The procedure was repeated at least twice, if not more often, during a single interrogation session. Moreover, this repetitive suffocation was inflicted on the detainees during subsequent sessions. The above procedure is the so-called ‘water boarding’ technique.

...

1.3.2. PROLONGED STRESS STANDING

Ten of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.

...

While being held in this position some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper. ...Many of the detainees who alleged that they had undergone this form of ill-treatment commented that their legs and ankles swelled as a result of the continual forced standing with their hands shackled above their head. They also noted that while being held in this position they were checked frequently by US health personnel. ...”

1.3.3. BEATING BY USE OF A COLLAR

Six of the fourteen alleged that an improvised thick collar or neck roll was placed around their necks and used by their interrogators to slam them against the walls. For example, Mr Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5., Confinement in boxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury. Mr Abu Zubaydah also believed that his interrogation was a form of experimentation with various interrogation techniques. Indeed some forms of ill-treatment were allegedly used against him that were not reported to have been used on other detainees. He claimed that he was told by one of the interrogators that he was one of the first to receive these interrogation techniques.”

...

1.3.5. CONFINEMENT IN A BOX

One of the fourteen reported that confinement inside boxes was used as a form of ill-treatment. Mr Abu Zubaydah alleged that during an intense period of his interrogation in Afghanistan in 2002 he was held in boxes that had been specially designed to constrain his movement. One of the boxes was tall and narrow and the other was shorter, forcing him to crouch down. Mr Abu Zubaydah stated that: ‘As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant that my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation". He went on to say that a cover was placed over the boxes while he was inside making it hot and difficult to breathe. The combination of sweat, pressure and friction from the slight movement possible to try to find a comfortable position, meant that the wound on his leg began to reopen and started to bleed. He does not know how long he remained in the small box; he says that he thinks he may have slept or fainted. The boxes were used repeatedly during a period of approximately one week in conjunction with other forms of ill-treatment, such as suffocation by water, beatings and use of the collar to slam him against the wall, sleep deprivation, loud music and deprivation of solid food. During this period, between sessions of ill-treatment he was made to sit on the floor with a black hood over his head until the next session began.”

1.3.6. PROLONGED NUDITY

The most common method of ill-treatment noted during the interviews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently. ...

Mr Abu Zubaydah alleged that after spending several weeks in hospital following arrest he was transferred to Afghanistan where he remained naked, during interrogation, for between one and a half to two months. He was then examined by a woman he assumed to be a doctor who allegedly asked why he was still being kept naked. Clothes were given to him the next day. However, the following day, these clothes were then cut off his body and he was again kept naked. Clothes were subsequently provided or removed according to how cooperative he was perceived by his interrogators.”

1.3.7 SLEEP DEPRIVATION AND USE OF LOUD MUSIC

Eleven of the fourteen alleged that they were deprived of sleep during the initial interrogation phase from seven days continuously to intermittent sleep deprivation that continued up to two or three months after arrest. Sleep was deprived in various ways, and therefore overlaps with some of the other forms of ill-treatment described in this section, from the use of loud repetitive noise or music to long interrogation sessions to prolonged stress standing to spraying with cold water.

For example, Mr Abu Zubaydah alleged that, while detained in Afghanistan ‘I was kept sitting on a chair, shackled by hands and feet for two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket’. He alleged that he was constantly deprived of sleep during this period ‘If I started to fall asleep a guard would come and spray water in my face’, he said. The cell was kept very cold by the use of air-conditioning and very loud ‘shouting’ music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

1.3.8. EXPOSURE TO COLD TEMPERATURE/COLD WATER

Detainees frequently reported that they were held for their initial months of detention in cells which were kept extremely cold, usually at the same time as being kept forcibly naked. The actual interrogation room was also often reported to be kept cold. Requests for clothing or for blankets went unanswered. For example, Mr Abu Zubaydah alleged that his cell was excessively cold throughout the nine months he spent in Afghanistan.

1.3.10. THREATS

Nine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of ‘water boarding’, electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and of an interrogation process to which ‘no rules applied’.

Mr Abu Zubaydah alleged that, in his third place of detention, he was told by one of the interrogators that he was one of the first to receive these interrogation techniques,’so no rules applied’. ...

1.3.11. FORCED SHAVING

Two of the fourteen alleged that their heads and beards were forcibly shaved. Mr Abu Zubaydah alleged that his head and beard were shaved during the transfer to Afghanistan. ...

1.3.12. DEPRIVATION/RESTRICTED PROVISION OF SOLID FOOD

Eight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month. This was often followed by a period when the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts.

For example, Mr Abu Zubaydah alleged that in Afghanistan, during the initial period of two to three weeks while kept constantly sitting on a chair, he was not provided with any solid food, but was provided with Ensure (a nutrient drink) and water. After about two to three weeks he began to receive solid food (rice) to eat on a daily, once a day, basis. Approximately one month later, during a resumption of intense questioning he was again deprived of food for approximately one week and only given Ensure and water.”

105. A further indication of the nature of the conditions of detention and treatment to which he was, as a matter of routine, subjected in Poland was provided in the authorised conditions of detention and transfer and interrogation techniques applicable at the relevant time (see paragraphs 60-68 above).

106. The 2004 CIA Report related the following facts that had occurred during the applicant’s detention between August 2002 and 30 April 2003:

“223. [REDACTED] Prior to the use of EITs, Abu Zubaydah provided information for [REDACTED] intelligence reports. Interrogators applied the waterboard to Abu Zubaydah at least 83 times during August 2002. During the period between the end of the use of the waterboard and 30 April 2003, he provided information for approximately [REDACTED] additional reports. It is not possible to say definitely that the waterboard is the reason for Abu Zubaydah’s increased production, or if another factor, such as the length of detention, was the catalyst. Since the use of the waterboard, however, Abu Zubaydah has appeared to be cooperative.”

107. The 2004 CIA Report, in the section covering the period from December 2002 to September 2003, in paragraphs 90-98, refers to the application of the so-called “unauthorised interrogation techniques on Mr Al Nashiri, which took place in December 2002 and January 2003 (see also Al Nashiri, cited above, §§ 99). The relevant part reads:

“91. [REDACTED] interrogation team members, whose purpose was to interrogate Al-Nashiri and debrief Abu Zubaydah initially staffed [REDACTED]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [REDACTED] they assessed him to be ‘compliant’. Subsequently, CTE officers at Headquarters [REDACTED] sent a [REDACTED] senior operations officer (the debriefer) [REDACTED] to debrief and assess Al-Nashiri.”

D. Transfer from Poland on 22 September 2003

108. On 22 September 2003, according to the applicant, he was transferred by means of extraordinary rendition from Polish territory, on a Boeing 737 airplane registered as N313P with the US Federal Aviation Authority and operated by Stevens Express Leasing, to other CIA secret detention facilities. Those locations are believed to include Guantànamo Bay in Cuba, Morocco, Lithuania and Afghanistan, from where he was subsequently transferred back to Guantànamo Bay.

In respect of his secret detention and ill-treatment in a detention facility allegedly located in Lithuania, the applicant has lodged a separate application with the Court (see Abu Zubaydah v. Lithuania (no. 46454/11), lodged on 14 July 2011; Statement of facts available on the Court’s website www.echr.coe.int).

109. The collation of data from multiple sources, including flight plan messages released by Eurocontrol, responses to information disclosure requests and media reports, shows that N313P travelled the following routes:

Take-off Destination Date of flight

Washington, DC(KIAD) Prague,Czech Republic(LKPR) 21 Sept 2003

Prague, Czech Republic(LKPR) Tashkent, Uzbekistan (UTTT) 22 Sept 2003

Kabul, Afghanistan (OAKB) Szymany, Poland (EPSY) 22 Sept 2003

Szymany, Poland (EPSY) Constanta, Romania (LRCK) 22 Sept 2003

Constanta, Romania (LRCK) Rabat, Morocco (GMME) 23 Sept 2003

Rabat, Morocco (GMME) Guantànamo Bay, Cuba (MUGM) 24 Sept 2003

110. A letter from the Polish Border Guard, dated 23 July 2010 (see paragraph 282 below), in response to an information disclosure request from the Helsinki Foundation for Human Rights attests to the plane registered N313P arriving at Szymany airport on 22 September 2003 with no passengers and seven crew, and departing with five passengers and seven crew.

111. Flight plan and SITA (Société Internationale de télécommunication aéronautique) messages disclosed by the Polish Air Navigation Services Agency (“PANSA”) to the Helsinki Foundation for Human Rights in Warsaw show that N313P landed in Szymany, en route from Kabul, at 18:50 on 22 September 2003 and left Szymany at 19:56 on the same day.

112. According to data disclosed by PANSA, N313P had filed an initial schedule of Kabul (22 September 2003, 15:00) - Warsaw (22 September 2003, 20:50) - Otopeni (23 September 2003, 00:05). This schedule was cancelled, however, and an urgent new schedule was filed of Kabul (22 September 2003, 12:30) - Szymany (22 September 2003, 10:00) - Constanta (22 September 2003, 22:00). Flight plans were then filed for N313P to leave Kabul at 13:00 on 22 September 2003 and arrive in Szymany 5 hours and 49 minutes later; and to leave Szymany at 21:00 that same day, arriving in Constanta 1 hour and 36 minutes later (with alternative destination of Bucharest).

113. A hand-written log of take-offs and landings at Szymany airport confirmed that N313P arrived in Szymany on 22 September 2003 at 21:00 (local time) and departed at 21:57 (local time). Flight plan messages disclosed by Eurocontrol to Senator Marty during his investigation for the Parliamentary Assembly of the Council of Europe (see also paragraph 248 below) corroborated this account. Multiple messages for each log of the journey attest to an itinerary of Washington, DC - Prague - Tashkent - Kabul-Szymany - Constanta - Rabat - Guantànamo Bay. These flight plan messages also show that N313P was operated by Stevens Express Leasing Inc., a company based in the US and identified by the media as a CIA-front company

114. Jeppesen Dataplan Inc., a US corporation-based in California, alleged to have been a major provider of flight services to the CIA that enabled the rendition operations was responsible for trip planning services for N313P’s-mission (see also paragraphs 70-72 above).

115. The 2007 Marty Report identified N313P as a “rendition plane ” that flew from Kabul and landed in Szymany airport on 22 September 2003 at 21:00 (see paragraph 252 below).

116. The flight data procured by the 2007 Marty Report was subsequently analysed by the Center for Human Rights and Global Justice (“the CHRGJ”), which, in its report released on 9 March 2010 (“the CHRGJ Report”), confirmed that N3139 P’s movements over 20-23 September 2003 conformed to the typical attributes of a CIA clandestine rendition circuit. (for further details see paragraphs 281-285 below).

E. Further transfers during CIA custody (22 September 2003 - September 2006)

117. It was submitted that after leaving Poland the applicant had continued to be held in CIA secret detentions elsewhere, including Guantànamo Bay, Morocco, and Lithuania, until September 2006. At around that time he was transferred again to Guantànamo Bay, where he is currently detained. During this entire period, he was continually held in incommunicado detention and solitary confinement, and subjected to torture and ill-treatment under the HVD Programme.

F. The applicant’s subsequent detention in Guantànamo Bay Internment Facility

118. Since September 2006, the applicant has been held in the US Guantànamo Bay Naval Base in the highest security Camp 7 in extreme conditions of detention. Camp 7 was established to hold the High-Value Detainees transferred from the CIA to military custody.

Visitors other than lawyers are not allowed in that part of the Internment Facility. The inmates are required to wear hoods whenever they are transferred from the cell to meet with their lawyers or for other purposes. The applicant’s US lawyers have so far not been allowed inside Camp 7. Lawyers for some detained who face trial before the Guantànamo military commissions have been allowed to do so only after volunteering to wear the same hoods as detainees.

The applicant is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family.

119. The applicant has not been charged with any criminal offence. The only review of the basis of his detention was carried out by a panel of military officials as part of the US military Combatant Status Review Tribunal on 27 March 2007. The panel determined that he could be detained.

120. The applicant is not listed for trial by military commission.

121. According to the applicant, as a result of torture and ill-treatment to which he was subjected when held in detention under the HVD Programme, he is suffering from serious mental and physical health problems.

The applicant’s US counsel have been unable to provide many of the details of his physical and psychological injuries because all information obtained from him is presumed classified. They have stated that publicly available records described how prior injuries had been exacerbated by his ill-treatment and by his extended isolation, resulting in his permanent brain damage and physical impairment.

The applicant is suffering from blinding headaches and has developed an excruciating sensitivity to sound. Between 2008 and 2011 alone he experienced more than 300 seizures. At some point during his captivity, he lost his left eye. His physical pain has been compounded by his awareness that his mind has been slipping away. He suffers from partial amnesia and has difficulty remembering his family

G. Parliamentary inquiry in Poland

1. Parliamentary inquiry in Poland

122. In November-December 2005 a brief parliamentary inquiry into allegations that a secret CIA detention site existed in the country was carried out in Poland. The inquiry was conducted by the Parliamentary Committee for Special Services (Komisja do Spraw Służb Specjanych) behind closed doors and none of its findings have been made public. The only public statement that the Polish Government made was at a press conference when they announced that the inquiry had not turned up anything “untoward”.

2. Views regarding the inquiry expressed by international organisations

(a) Council of Europe

123. The 2006 Marty Report (see also paragraphs 240-244 below), referring to that inquiry stated: “this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations”.

The 2011 Marty Report, in paragraph 40, also referred to the Polish parliamentary inquiry, stating, among other things that “the [parliamentary] commission responsible for oversight of the intelligence services ... held a one-day meeting on 21 December 2005 to discuss the allegations of secret CIA prisons in Poland” and that “the only public indication given by the commission was that there ha[d] not been any CIA prisons in Poland”.

(b) European Parliament

124. Similar concerns were expressed in the Fava Report, which stated that “the Polish government investigated the allegations in internal, secret inquiry (see also paragraphs 262-263 below) and the EU Parliament’s in paragraph 169 of its resolution adopted following the report “regretted that no special inquiry ha[d] been established and that the Polish Parliament ha[d] conducted no independent investigation” (see paragraph 269 below).

H. Criminal investigation in Poland

125. Given that the Polish Government disclosed only limited information of the investigation, the following description constitutes the Court’s reconstruction of its conduct based on various pieces of information supplied by the Government, the applicant in the present case and the applicant in the case of Husayn (Abu Zubaydah) and also on some materials available in the public domain - which have not been contested, negated or corrected by either party. Certain parts of the parties’ accounts overlap but neither party contested the account given by its opponent.

Accordingly, there has been no disagreement as to the circumstances of the case as stated below.

1. Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Al Nashiri v. Poland

126. On 11 March 2008 the Warsaw Regional Prosecutor (Prokurator Okręgowy) opened an investigation against persons unknown (śledztwo w sprawie) concerning secret CIA prisons in Poland.

127. On 11 July 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy) and referred to the 10^th Department of the Bureau for Organised Crime and Corruption.

128. On 1 April 2009, as the Government state, “due to organisational changes”, the case was transmitted to the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) and was then conducted by the 5^th Department for Organised Crime and Corruption of the Warsaw Prosecutor of Appeal’s Office until 26 January 2012.

On 26 January 2012, by virtue of the Prosecutor General’s decision, the case was transferred to the Kraków Prosecutor of Appeal (see also paragraph 153 below).

129. Referring to the scope of the investigation, the Government stated that “the subject matter ... covers, among others, alleged commission of offences under Article 231 § 1 of the Criminal Code and other, relating to alleged abuse of powers by public officials, acting to the detriment of the public interest, in connection with the alleged use of secret detention centres located in the territory of Poland by the Central Intelligence Agency to transport and illegally detain persons suspected of terrorism”.

Subsequently, in their observations filed in the present case they stated the following:

“The scope of the conducted investigation as to persons in light of the alleged offences reported during different periods covers three persons: Abd Al-Rahim Husein Muhamed Abdu Al-Nashiri, Zayn Al-Abidin Muhammad Husein and a certain W.M.S.M.A.”

130. In the course of the investigation evidence form 62 persons have been heard. The case file comprises 43 volumes. Procedural steps taken in the investigation included “checking information contained in Dick Marty’s reports drafted for the Council of Europe in 2006-2007 and in the report of the European Parliament concerning possible detention in the territory of Poland of persons suspected of terrorism, as well as the use against them of illegal methods of interrogation”.

The Government added that the actions taken by the prosecution “concerned procedural verification of the circumstances of the landings, while omitting border and customs control in the Szymany airport used by the [CIA]”.

Border Guard and Customs Service officers, the staff of the Szymany airport, air traffic controllers, one member of the European Parliament’s Commission that had carried out an inquiry into the circumstances surrounding the CIA operations in Poland at the relevant time were heard as witnesses. The PANSA provided materials concerning aircraft landings in the Szymany airport.

131. According to the Government, “due to the complex legal nature of the proceedings, opinion of experts on public international law has been sought in order to provide answers to questions concerning international law regulating the establishment and running of detention centres for persons suspected of terrorism and the status of such persons”.

132. The Polish authorities addressed four requests for legal assistance to the US authorities under the Mutual Legal Assistance in Criminal Matters Agreement (“the MLAT”) signed by the United States and Poland.

The first request for information concerning the landing of US aircraft in the Szymany airport, dated 18 March 2009, was declined by the US Department of Justice on 7 October 2009 (see also paragraph 143 below).

The second request, dated 9 March 2011, concerned, according to the Government’s description, “the need to perform acts with the participation of two persons who have the status of injured persons and whose representatives declared their participation in the preparatory proceedings”. As of 5 September 2012 (the date on which the Government filed their observations in Al Nashiri) there had been no answer to the request (see also paragraph 147 below).

The most recent two requests were sent in May 2013 and, as the Government submitted, concerned handing over documents, providing information and questioning witnesses.

The former requests, despite reminders of 25 July and 11 October 2012 and 30 January 2013, have not been answered. Another reminder was sent by the Office of the Prosecutor General on 28 May 2013.

133. The Polish authorities also requested the ICRC for information but their request was denied, as the Government state, “on the grounds of the ICRC’s procedure”. The US lawyers for Mr Al Nashiri and for the second injured party were heard but gave fragmentary depositions, invoking the principle of client-lawyer confidentiality.

As regards further actions taken in the course of the investigation, the Government submitted, among other things, the following:

“Lawyers for the potential injured persons submitted multiple motions as to evidence in the case. These are being systematically examined in the course of the investigation, some were dismissed because the circumstances raised in them were considered proven in line with the statements made by the applicants. Actions covered by other motions are successively implemented. ... Several of these motions can be only implemented through international legal assistance, which involves drafting additional motions in that regard. ...

At the current stage of the proceedings, persons conducting the investigation have limited possibilities of finding new witnesses (although there are some exceptions). They are now involved in additional hearings of persons who have already been questioned as witnesses. These additional hearings are intended either to provide further details or to extend the scope of the hearing. On witness in this cases is Senator Józef Pinior. ... the questioning was intended to obtain evidence which he publicly declared to have about the events under investigation. But the hearing proved ineffective. When asked about this directly, the senator invoked his right under [section] 21 of the Act on the exercise of the mandate of deputy and senator dated 9 May 1996 (ustawa z dnia 9 maja 1996 r. o wykonywaniu mandatu posła i senatora). and refused to disclose the name of the person who provided him with such information.”

134. The Government added that actions had been taken to determine whether expert opinions could be obtained in at least three areas of expert knowledge. The nature and the area could not be disclosed at this stage. Also, translations of documents and reports in English were provided.

2. Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Al Nashiri v. Poland and certain materials available in the public domain

135. The investigation concerning secret CIA prisons in Poland started on 11 March 2008.

136. On 9 April 2009, in response to a request for information by the Helsinki Foundation for Human Rights, the Head of the Bureau for Organised Crime and Corruption in the State Prosecutor’s Office (Biuro ds. Przestępczości Zorganizowanej i Korupcji Prokuratuy Krajowej) stated that:

“...in reference to the Resolution of the European Parliament regarding the investigation into the alleged use of European countries by the Central Intelligence Agency of the United States to transport and illegally detained prisoners, the 5^th Department for Organized Crime and Corruption of the Warsaw Prosecutor of Appeal is conducting the investigation in the case AP V DS. 37/09 regarding the abuse of power by State officials, namely the offence defined in Article 231 § 1 of the Criminal Code.

The proceedings were commenced on March 11, 2008 by the Warsaw [Regional Prosecutor].

In the course of the investigation there are conducted open and classified procedural activities.

Within open activities, landings of American aircrafts in Szymany airport were confirmed. The information quoted in your letter, sourced by the web site, does not correspond with the exact wording of the prosecutor. The prosecutor possesses information over the report of the International Red Cross.

The interest of the Helsinki Foundation for Human Rights of the case is obvious. Nevertheless the presentation of prosecutor’s intentions, due to the fact that a wide range of procedural activities is classified, is not possible,

Taking into consideration the above, it is not possible to indicate the precise date of the termination of the investigation.”

137. On an unspecified date in 2009, responding to a questionnaire from the UN experts working on the 2010 UN Joint Study (see also paragraphs 278-280 below), the Polish authorities stated the following:

“On 11 March 2008, the [Regional] Prosecutor’s Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor’s Office, the investigation was referred to the Warsaw [Prosecutor of Appeal]. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body.”

138. On 21 September 2010 the Polish lawyer for Mr Al Nashiri filed an application with the Warsaw Regional Prosecutor, asking for an investigation into his detention and treatment in Poland to be opened.

139. The application included numerous evidentiary motions, requesting that the investigating prosecutors hear evidence from the applicant and a number of other witnesses, including former General Directors of the CIA G. Tenet, J. Mc Laughlin, P. Goss and M. Hayden, certain pilots and commanders involved in the rendition flights to Poland, members of the ICRC team, Senator Dick Marty and other authors of the Marty Reports and a number of Polish politicians and military officials, for instance, General H. Tacik, Executive Commander of the Armed Forces in 2004-2007, former Prime Minister L. Miller, former president of Poland A. Kwaśniewski and former Head of the Intelligence Agency Z. Siemiątkowski. The applicant’s lawyer also requested the prosecution to admit documentary evidence and ask the relevant authorities to disclose the identities and locations of persons who needed to be heard in the investigation.

140. The lawyer also asked that the applicant be informed about all actions undertaken as part of the investigation and be admitted to participate in them.

141. On 22 September 2010, Mr J. Mierzewski, the investigating prosecutor from the 5^th Department of Organised Crime and Corruption of the Warsaw Prosecutor of Appeal’s Office, informed the applicant’s lawyer that there was no need to conduct a separate investigation into the circumstances surrounding the applicant’s detention and treatment as those matters would be dealt with in the investigation initiated on 11 March 2008.

In October 2010, the prosecutor granted injured-party (pokrzywdzony) status to Mr Al Nashiri.

142. On 16 December 2010 the Polish lawyer for the applicant and Interights filed an application with the Warsaw Regional Prosecutor, reporting the commission of offences against the applicant during his detention in Poland and asking for him to be granted injured-party status in the investigation. The application described how the applicant had been transferred by the CIA from Thailand to Poland on 5 December 2002 and related the conditions of his detention and his ill-treatment over the subsequent months, during which - as he alleged - he had been held in Poland. It included evidence of the roles played by the CIA agents and Polish officials in the HVD Programme in Poland, the rendition flights that transported the applicant into and out of Poland, the names of private companies involved in those flights, and the operation of the CIA secret prison site in Stare Kiejkuty.

On 11 January 2011 the Warsaw Regional Prosecutor granted the applicant injured-party status in the investigation.

143. In a letter of 15 December 2010, replying to the Helsinki Foundation for Human Rights’ request for information, the prosecution authorities revealed that on 18 March 2009 the Warsaw Prosecutor of Appeal had submitted a legal assistance request to the US judicial authorities regarding the investigation. On 7 October 2009 the US Department of Justice informed the Polish authorities that under Article 3(1)(c) of the MLAT, the request had been refused and American authorities considered the case closed (see also paragraph 132 above). The Prosecutor did not publicly disclose the content of the mutual assistance request due to “State secrecy”.

144. In a letter of 4 February 2011 addressed to the Helsinki Foundation for Human Rights the prosecutor provided information about certain procedural actions undertaken in the course of the investigation. According to the letter, steps undertaken by the prosecutors were related to the verification of the landings without clearance by the CIA planes between 2002 and 2003 at the Szymany airport. Evidence from Border Guard and Customs Service officers had been heard, as well as from employees of the Szymany airport, flight controllers and a member of the European Parliament’s Commission that carried out an inquiry into the circumstances under investigation (see also paragraph 143 above).

145. Apparently on 17 February 2011 the Warsaw Deputy Prosecutor of Appeal, Mr R. Majewski, and the investigating prosecutor, Mr J. Mierzewski, ordered that evidence from three experts on public international law on the issues relevant for the investigation be obtained (see also paragraph 134 above). The contents of the order, questions and answers from the experts were not made public but were leaked to the press and published by Gazeta Wyborcza daily on 30 May 2011. There was no subsequent disclaimer from the prosecution.

The text of the prosecutors’ order as reproduced by Gazeta Wyborcza read, in so far as relevant, as follows:

“... Order on obtaining a report - appointing an expert in the case concerning abuse of power by State officials, i.e. the offence defined in Article 231 and others [of the Criminal Code].

Robert Majewski, Warsaw Deputy Prosecutor of Appeal, and Jerzy Mierzewski, the prosecutor of the Warsaw Prosecutor of Appeal’s Office, decided to appoint a team of experts on the public international law, i.e. ... in order to establish whether [text of ten questions reproduced below].”

The questions and corresponding answers, as published in Gazeta Wyborcza, read as follows:

“1. Are there any provisions of public international law regulating the setting up and functioning of facilities for holding persons suspected of terrorist activity? If so, which of them are binding on Poland?

Answer: Terrorism is a criminal offence and is prosecuted on the basis of legal provisions of a given State.

2. Are there any provisions of public international law permitting a facility for holding persons suspected of terrorist activity to be excluded from jurisdiction of the State on whose territory such a facility has been set up? If so, which of them are binding on Poland?

Answer: There are no such provisions. The setting up of such a facility would amount to a breach of the Constitution and an offence against sovereignty of the R[epublic of] P[oland].

3. In the light of international public law, what is the legal status of an arrested person suspected of terrorist activity?

Answer: This is regulated by criminal law of a given country unless [a person] is a prisoner of war.

4. What influence on the legal status of an arrested person suspected of terrorist activity does have the fact that the arresting authority considers that the person belongs to the organisation described as Al-Khaida?

Answer: It does not have any importance. Membership in Al-Khaida is not separately regulated by any provisions of criminal law.

5. In the light of the provisions of international public law, what importance for the legal status of an arrested person suspected of terrorist activity does have the fact that the person has been arrested outside the territory which is occupied, seized or on which an armed conflict takes place?

Answer: Such arrest can be qualified as unlawful abduction.

6. Can a person suspected of terrorist activity, arrested outside the territory of the Republic of Poland and subsequently held in a facility in Poland, be characterised as a person referred to in Article 123 § 1-4 of the Criminal Code [in general, persons protected by the 1949 Geneva Conventions: members of armed forces who have laid down their arms, wounded, sick, shipwrecked, medical personnel, priests, prisoners of war or civilians from the territory occupied, seized or on which an armed conflict takes place or other persons protected by international law during an armed conflict]?

Answer: Such a qualification is justified.

7. Is the holding of a person suspected of terrorist activity, in respect of whom no charges were laid and no detention order has been issued under Polish law, in breach of public international law in terms of deprivation of liberty or the right to an independent and impartial court or limitations on his defence rights in criminal proceedings?

Answer: Yes and it should be prosecuted.

8. In the light of international public law, can the methods of interrogation and treatment of detainees suspected of terrorist activity as described in the CIA documents supplied by the injured parties be considered torture, cruel or inhuman treatment of these persons?

Answer: Yes. Torture is prohibited both under international conventions and the laws of specific States.

9. Are the regulations issued by the USA authorities in respect of persons considered to be engaged in terrorist activity and their application in practice in conformity with the provisions of international humanitarian law ratified by Poland?

Answer: No. These regulations are often incompatible with international law and human rights.

10. If possible, [the experts are asked] to make an assessment of compatibility of regulations concerning combating terrorism issued by the USA authorities after 11 September 2011 with the provisions of public international law relating to the legal status, treatment, methods of interrogation and procedural guarantees of persons. “

146. On 25 February 2011 Mr Al Nashiri’s lawyer filed, through the Warsaw Prosecutor of Appeal, a complaint with the Warsaw Regional Court (Sąd Okręgowy) under the Law of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”). The applicant asked the court to find that the length of the investigation had been excessive, order the investigating prosecutor to take actions to counteract the delay and to mitigate the consequences of the delay that had already occurred. He also asked the court to award him an appropriate sum in compensation.

The complaint was referred for examination to the Białystok Regional Court.

On 20 April 2011 the court dismissed it, holding that the length of the investigation was not excessive. It stressed, in particular, complexity of the case.

147. According to press reports, on 9 March 2011 the prosecution submitted the second legal assistance request to the US Department of Justice, sought under the MLAT. Although the prosecutors have never officially disclosed its content, it is reported that they asked, inter alia, for evidence to be heard from the applicant. There has apparently been no answer by the US authorities to this request (see also paragraph 132 above).

148. On an unspecified date in mid-May 2011 the investigating prosecutor J. Mierzewski was disqualified from dealing with the case.

149. Later, the press reported that the disqualified investigating prosecutor had intended to ask the present President of Poland to release the former President of Poland, Mr A. Kwaśniewski, from his secrecy obligations in order to have him questioned in connection with the alleged operation of the CIA “black site” in Poland.

150. The applicant and Mr Al Nashiri submitted that in September 2011, the President of Poland, Mr B. Komorowski, had refused to relieve the former President of Poland A. Kwaśniewski from his secrecy duty for the purpose of providing information to the prosecutors.

151. On an unspecified date, presumably in the second half of 2011, the First President of the Supreme Court gave a decision exempting a number of State officials from maintaining the secrecy of classified materials in connection with the investigation into secret CIA prisons in Poland and ordering the Intelligence Agency (Agencja Wywiadu) to disclose classified materials to the prosecution. This decision was apparently given in a review procedure (see also paragraph 199 below), after the Head of the Intelligence Agency refused the investigating prosecutor’s request to that effect.

152. According to press reports, on an unspecified date, presumably on 10 January 2012, the Warsaw Prosecutor of Appeal charged Mr Z. Siemiątkowski, the Head of the Intelligence Agency in 2002-2004, during the Democratic Left Alliance (Sojusz Lewicy Demokratycznej) Government, with abuse of power (Article 231 of the Criminal Code - see also paragraph 172 below) and with violation of international law by “unlawful detention” and “imposition of corporal punishment” on prisoners of war. Information about the charges leaked to the press towards the end of March 2012 and was widely disseminated in Polish and international media. It was suggested that the charges were eventually brought mostly because of the fact that the Intelligence Agency had been obliged - pursuant to the First President of the Supreme Court’s decision - to supply certain classified materials relating to their cooperation with the CIA in the first stage of the “war on terror” (see also paragraph 151 above and paragraph199 below.

There has been no official statement from the prosecution regarding the charges. The supposed suspect, however, gave interviews to the press and stated that he had refused to give evidence before the prosecutor and was going to rely on his right to silence throughout the entire proceedings, also at the judicial stage. He invoked national-security grounds.

153. After the investigation was transferred to the Kraków Prosecutor of Appeal on 26 January 2012, the Prosecutor General (see also paragraph 128 above), relying on the secrecy of the investigation, refused to give reasons for the decision to transfer the case.

154. As regards other persons possibly involved, since the end of March 2012 there have been repeated reports in the media that evidence disclosed to the prosecution by the Intelligence Agency may justify the initiation of the proceedings against Mr L. Miller, the Prime Minister in 2001-2004, before the Court of State (Trybunał Stanu) for violating the Constitution. The President of Poland at the material time, Mr A. Kwaśniewski, has also been mentioned in that context. Both of them have given interviews to media and denied the existence of any CIA prisons in Poland.

155. In its 2012 Periodic Report on the Implementation of the Provisions of the Convention against Torture, Poland has referred to the scope of the investigation in the following way:

“An investigation on the circumstances defined in the question was conducted by the Appellate Prosecution Authority in Warsaw (ref. No. Ap V Ds. 37/09) and concerns suspicions of public officials exceeding their authorities to the detriment of public interest, i.e. an offence under Art. 231 § 1 [of the Criminal Code]```````````. ... Because of the fact that the proceedings are confidential, any more extensive account of the results of the investigation, its scope, detailed progress and methodology is impossible. At the current stage of development, the conclusion of investigation cannot be predicted, even roughly.”

156. On 29 February 2012 the Helsinki Foundation for Human Rights asked the Kraków Prosecutor of Appeal for information about the conduct of the investigation.

The prosecutor replied on 4 April 2012. The letter read, in so far as relevant, as follows:

“1. The investigating prosecutor in the case concerning the suspicion that there were CIA prisons in Poland is Ms K.P.

2. The case is registered under no. Ap V Ds. 12/12/S.

3. The case concerns an offence defined in Article 231 §1 of the Criminal Code and in other provisions.

4. The investigation has been prolonged until 11 August 2012.

5. In the course of the investigation evidence has been taken from 62 persons.

6. After 18 March 2009 the authorities of the United States have been asked to supply appropriate information within the framework of [mutual] legal assistance.

7. To date, the case file comprises twenty volumes.

8. Access to classified material is strictly controlled and all persons having access to the materials are listed in the documentation. As a matter of principle, the investigating prosecutors and prosecutors supervising the conduct of the investigation have access to the file.

9. In the course of the investigation, expert evidence has been obtained from experts in public international law.

I should also inform you that I am not able to give you a broader answer because the material collected in the case is classified “top secret”.

Information of the contents of the order appointing the experts in public international law, cited in your letter, is not an official position of the prosecution and, in consequence, we cannot give you more detailed information in reply to your questions. I would add that the prosecution has initiated appropriate proceedings concerning the illegal disclosure of information about the pending investigation. I would also add that information contained in this letter has not been supplied under [the law on public access to information]. According to the established case-law [of the Supreme Administrative Court], this law does not apply to pending investigations. However, respecting the citizens’ right to information about activities of public authorities, I provide you with the above information ...”

157. On 28 July 2012 the spokesman for the prosecution informed the press that the investigation into the matter of the CIA secret prisons in Poland had been extended by a further six months, that is until 11 February 2013. This was the eighth extension since the beginning of the investigation on 11 March 2008.

158. On 21 September 2012 the Helsinki Foundation for Human Rights requested the National Council of Prosecution (Krajowa Rada Prokuratury) to examine a possible breach of the principle of independence of prosecutors in relation to the transfer of the investigation to the Kraków Prosecutor of Appeal on 26 January 2012 (see paragraphs 128 and 153 above).

159. On 10 January 2013 the National Council of Prosecution found that there were no grounds to conclude that the transfer occurred in violation of the principle of independence of prosecutors. The relevant decision stated, among other things, that:

“The National Council of Prosecution did not find grounds supporting the argument that the transfer of the investigation occurred in violation of the [principle of the] independence of prosecutors as guaranteed by law. The decisions to change the prosecutors in charge of the criminal proceedings and the decision to hand over the case to the Prosecutor of Appeal for further investigation are well-grounded in the applicable provisions of law - a point which must be unequivocally emphasised. ...

At this point, it should be noted that the National Council of Prosecution has not received any signals from prosecutors conducting this investigation suggesting that their independence has been violated.”

160. On 1 February 2013 it was reported in the Polish media that the prosecutor had applied for a further extension. The investigation was then extended by the Prosecutor General until 11 June 2013.

161. On 7 February 2013 Gazeta Wyborcza published extracts from an interview given by L. Miller, the Prime Minister of Poland in 2001-2004, to the radio station TOK FM, who said:

“I refused to give evidence in the case concerning the so-called ‘CIA prisons’ because I do not have confidence in the prosecution’s impenetrability. Cancer has been eating the prosecution away for years. There are leaks all the time. I was convinced that whatever I would say there, would in a moment be in newspapers. In addition, the scope of questions which were the object of the interrogation went considerably beyond the problem of the so-called ‘CIA prisons’. And I am a man responsible enough and will not talk to anyone about various intelligence operations.”

162. On 10 June 2013 the spokesman for the Kraków Prosecutor of Appeal informed the media that the investigation had been extended by the Prosecutor General until mid-October 2013.

163. The authorities did not disclose the terms of reference or the precise scope of the investigation. Until June 2013 the investigation has been extended nine times.

164. The investigating prosecutor ruled on evidentiary motions filed by Polish counsel who represents the applicant in the pending criminal investigation, but refused most of the counsel’s requests to interview witnesses.

The Polish counsel has also received access to the non-classified part of the investigation file and on one occasion to classified material relating to the investigation. However, the precise scope of the investigation remains unclear, particularly since the statute of limitations with respect to the abuse of power by Polish officials - the principal offence publicly disclosed by the prosecutors as being subject to investigation - appears to have expired. No formal charges have been officially announced to date, and there is no indication as to when the investigation is likely to be terminated.

165. In October or November 2013, the Prosecutor General extended the investigation until 11 February 2014. This was the eleventh extension granted to the investigating prosecutor during the proceedings.

166. As on the date of the adoption of the judgment, the proceedings were still pending.

3. Views regarding the investigation expressed by international organisations

(a) United Nations

(i) The 2010 UN Joint Study

167. The 2010 UN Joint Study, in its paragraph 118, recorded its “concern . . . about the lack of transparency into the investigation” observing that “[a]fter 18 months, still nothing is known about the exact scope of the investigation”. The UN experts added that they “expect that any such investigation would not be limited to the question of whether Polish officials had created an ‘extraterritorial zone’ in Poland, but also whether officials were aware that ‘enhanced interrogation techniques’ were applied there (see also paragraphs 277-280 below).

(ii) The UN Human Rights Committee

168. The conduct of the investigation was also examined by the UN Human Rights Committee. In its concluding observations on reports on Poland dated 27 October 2010, the UN Human Rights Committee “note[d] with concern that the investigation conducted by the Fifth Department for Organised Crime and Corruption of Warsaw Prosecutor of Appeal [wa]s not yet concluded” (see also paragraph 280 below).

(iii) The UN Committee against Torture

169. The UN Committee against Torture considered the combined fifth and sixth periodic reports of Poland (CAT/C/POL/5-6) at its 1174th and 1177th meetings, held on 30 and 31 October 2013. It adopted its concluding observations on the reports at its 1202nd meeting (CAT/C/SR. 1202) held on 19 November 2013.

The relevant part of the document, entitled “Rendition and secret detention programme, reads as follows:

“10. The Committee is concerned about the lengthy delays in the investigation process on the alleged complicity of the State party in the Central Intelligence Agency rendition and secret detention programmes between 2001 and 2008, which allegedly involved torture and ill treatment of persons suspected of involvement in terrorism related crimes. It is also concerned about the secrecy surrounding the investigation and failure to ensure accountability in these cases (arts.2, 3, 12 and 13).

The Committee urges the State party to complete the investigation into allegations of its involvement in the Central Intelligence Agency rendition and secret detention programmes between 2001 and 2008 within reasonable time and ensure accountability of the persons involved in the alleged crimes of torture and ill treatment. It also recommends that the State party inform the public and ensure transparency into the progress of its investigation process as well as cooperate in full with the European Court of Human Rights on the Central Intelligence Agency rendition and secret detention cases against Poland.”

(b) Amnesty International

170. In June 2013 Amnesty International published its report entitled “Unlock the Truth: Poland’s involvement in CIA secret detention” which, in its conclusions, states, inter alia, the following:

“Poland has been in the spotlight since 2005, long accused of hosting a secret detention facility operated by the CIA where suspects were held and tortured between 2002 and 2005. As this report has documented, a stream of credible reports by the media, intergovernmental, and non-governmental organizations - coupled with official data from Polish governmental agencies - leaves little room for doubt that Poland is implicated.

The lawyers of both of the named victims - Abd al-Rahim al-Nashiri and Abu Zubaydah - maintain that the information now available is enough to trigger prosecutions, but the on-going Polish criminal investigation, shrouded in secrecy, drags on. Since its inception in 2008, the investigation has been plagued by sudden personnel changes, an unexplained shift from Warsaw to Kraków, and complaints by al-Nashiri’s and Abu Zubaydah’s representatives that prosecutors have frustrated their attempts to participate fully in the Polish proceedings. Other potential victims, such as Walid bin Attash, may be waiting in the wings, searching as well for justice in Poland.

Yet accusations abound of delay in the investigation as a deliberate tactic as a result of political influence on the process. Attempts to get answers from the Polish authorities are met with cryptic acknowledgements that ‘something happened’ in Poland; or denials of knowledge of or wrong-doing in relation to the operations; or . . . with silence. ...”

IV. RELEVANT DOMESTIC LAW

A. Criminal Code

1. Territorial jurisdiction

171. Article 5 of the Criminal Code (Kodeks karny), reads as follows:

“Polish criminal law shall apply to a perpetrator who has committed a criminal act on the territory of the Republic of Poland, as well as on board any Polish aircraft or vessel, unless otherwise provided for by an international agreement to which the Republic of Poland is a party.”

2. Offence of abuse of power

172. Article 231 § 1 of the Criminal Code, which defines the offence of abuse of power, reads as follows:

“A public official who, overstepping his powers or not fulfilling his duties, acts to the detriment of the public or private interests shall be liable to a sentence of imprisonment up to three years.”

3. Statute of limitation

173. Article 101 § 1 of the Criminal Code sets out rules for statute of limitation on punishment for criminal offences. It reads, in so far as relevant:

“Punishment for an offence shall be subject to limitation if, from the time of commission of the offence, the [following] period has expired:

1) 30 years - if an act constitutes a serious offence (zbrodnia) of homicide;

2) 20 years - if an act constitutes another serious offence;

2a) 15 years - if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 5 years;

3) 10 years - if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 3 years;

4) 5 years - in respect of other offences.

...”

174. Pursuant to Article 102, if during the limitation-periods referred to in the above provision, an investigation against a person has been opened, punishment for offences specified in § 1 (1-3) shall be subject to limitation after the expiry of 10 years and for other offences after the expiry of 5 years after the end of the relevant periods.

175. Article 105 lays down exclusion rules in respect of particularly serious crimes, including crimes under international law, homicide and certain forms of ill-treatment committed by a public official, which are not subject to any time-bar. It reads, in so far as relevant, as follows:

“1. Articles 101, [102] and ... shall not apply to crimes against peace, [crimes against] humanity and war crimes.

2. Articles 101, [102] and ... shall not apply to intentional offences of homicide, grievous bodily harm, grievous damage to health or deprivation of liberty with particular torment committed by a public official in connection with performing his duties.”

4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation)

Article 241 § 1 reads as follows:

“A person who disseminates to the public information [deriving from] a criminal investigation before that information has been disclosed in judicial proceedings shall be liable to a fine, restrictions on his liberty or a sentence of imprisonment up to two years.”

B. Code of Criminal Procedure

1. Prosecution of offences

177. Pursuant to Article 17 § 1 (6) of the Code of Criminal Procedure (Kodeks postępowania karnego), prosecution shall be time-barred if the statutory period of limitation for punishment has expired. This provision reads:

“[Criminal] proceedings shall not be instituted and, if instituted, shall be discontinued, if:

...

6) the statutory period of limitation on punishment has expired.”

178. Article 303 imposes on the authorities a duty to open an investigation of their own motion if there is a justified suspicion (uzasadnione podejrzenie) that an offence has been committed. It reads:

“If there is a justified suspicion that an offence has been committed, a decision to initiate an investigation shall be issued [by the authorities] of [their] own motion or upon a notification of offence. [That] decision shall specify an act subject to the proceedings and its legal characterisation.”

179. An offence shall be prosecuted by the authorities of their own motion. Exceptions from this rule concern only a few offences which cannot be prosecuted without a prior request (wniosek) from a victim (e.g. rape) or specific authority (e.g. certain military offences) and offences that can only be prosecuted by means of private prosecution (oskarżenie prywatne) (e.g. minor assault or defamation).

180. Article 10 § 1 of the Code reads:

“In respect of offences prosecuted of their own motion, the authorities responsible for prosecution of offences are obliged to institute and carry out an investigation and the prosecutor [is obliged] to file and maintain an indictment.”

181. Pursuant to Article 304, every person, authority or institution that has become aware that an offence prosecuted of the authorities’ own motion has been committed has a civic duty (obowiązek społeczny) to notify the prosecutor or the police.

2. Classified materials

182. Article 156 § 4 of the Code, which entered into force on 2 January 2011, provides:

“If there is a risk of disclosing information classified as ‘secret’ or ‘top secret’, inspecting a case file, making copies or photocopying shall take place under conditions determined by the president of the court or the court. Certified copies or photocopies shall not be issued unless otherwise provided by law.”

183. Article 156 § 5, which concerns access to a case file during an investigation, reads:

“Unless otherwise provided by law, in the course of an investigation the parties, the defence counsel, and the legal representatives shall be given access to the case file, be able to make copies or photocopies and to obtain payable certified copies only with permission from the investigating prosecutor.

In exceptional cases, in the course of an investigation access to the case file can be given to third persons with the prosecutor’s permission.”

C. Laws on classified information and related ordinance

1. The laws on classified information

(a) Situation until 2 January 2011 - “the 1999 Act”

184. The law of 22 January 1999 on protection of classified information (Ustawa o ochronie informacji niejawnych) (“the 1999 Act”) was in force until 2 January 2011. On that date it was repealed, following the entry into force of the law of 5 August 2010 on protection of classified information (“the 2010 Act”).

Section 2 (1) of the 1999 Act defined a state secret as follows:

“A State secret is information included in the list setting out categories of information, constituting appendix no. 1, whose unauthorised disclosure may cause a considerable threat to the fundamental interests of the Republic of Poland concerning public order, defence, security and international or economic relations of the State.”

185. Pursuant to section 23(1)-(2) of the 1999 Act, classified information could be rated “top secret” (ściśle tajne), “secret” (tajne), “confidential” (poufne) or “restricted” (zastrzeżone).

Appendix no. 1 to the 1999 Act listed 29 categories of information that could be classified as “top secret”. These included “classified information exchanged by the Republic of Poland with the North Atlantic Treaty Organisation, European Union, West European Union and other international organisations and States, rated “top secret” or equivalent, if so required under international agreements - on the basis of the reciprocity principle”.

186. Section 50 of the 1999 Act obliged all the authorities that created, processed, transmitted and stored documents containing classified information rated as “confidential” or constituting a State secret, to set up secret registries.

187. Section 52 (2) of the 1999 Act provided, in so far as relevant:

“Documents marked ‘top secret’ and ‘secret’ can be released from the secret registry only if the recipient can secure the conditions for protection of those documents from unauthorised disclosure. In case of doubts regarding the securing of conditions for protection, the document can be made available only in the secret registry.”

(b) Situation as from 2 January 2011 - “the 2010 Act”

188. Pursuant to its section 1(1), the 2010 Act sets out principles for “the protection of information whose unauthorised disclosure, also in the course of its preparation and regardless of its form and the manner of its communication, hereinafter referred to as ‘classified information’, would or could cause damage to the Republic of Poland or would be to the detriment of its interests”.

Section 1(2) (1) states that the law applies to public authorities, in particular to Parliament, the President of the Republic of Poland, the public administration, the self-government authorities and its subordinate units, the courts and tribunals (trybunały), the State audit authorities and “the authorities responsible for the protection of law”.

189. The 2010 Act no longer refers to such notions as “State secret” or “official secret” (tajemnica służbowa) but instead uses a more general term “classified information” (informacje niejawne), accorded four levels of protection depending on the importance of the classified material. Section 5 of the 2010 Act maintains the previous levels of classification, namely “top secret”, “secret”, “confidential” and “restricted”.

Classified information should be rated “top secret” if its unauthorised disclosure would cause an exceptionally grave damage to the Republic of Poland and “secret” if such a disclosure would cause a grave damage to its interests.

2. The 2012 Ordinance

190. The Ordinance of the Minister of Justice of 20 February 2012 on the handling of transcripts of questioning and other documents or items covered by the duty to maintain secrecy of classified information or the duty of secrecy related to the exercise of a profession or function (Rozporządzenie Ministra Sprawiedliwości z dnia 20 lutego 2013 r. w sprawie sposobu postępowania z protokołami przesłuchań i innymi dokumentami lub przedmiotami, na które rozciąga się obowiązek zachowania tajemnicy informacji niejawnych albo zachowania tajemnicy związanej z wykonywaniem zawodu lub funkcji) (“the 2012 Ordinance”) entered into force on 13 March 2012.

191. Paragraph 4.2 of the 2012 Ordinance provides that the court, or at the investigation stage, the prosecutor shall classify a case file or particular volumes of it as “top secret", “secret”, “confidential” or “restricted” if the file includes circumstances covered by the duty of secrecy of information classified as a State secret, an official secret or a secret related to the exercise of a profession or function. The case file, other documents or items classified as “top secret”, “secret” or “confidential” are to be deposited in the court’s or the prosecution’s secret registry.

Paragraph 6.1 of the 2012 Ordinance provides that classified files, documents or items shall be made available to parties, counsel and representatives only on the basis of an order issued by the court or its president, or, at the investigation stage, by the prosecutor.

In accordance with paragraph 6.2, an order referred to in the preceding provision, should indicate the person authorised to inspect the classified documents, case file or items and specify the scope, manner and place of the inspection. If the person concerned asks for the creation of a bound set of documents (trwale oprawiony zbiór dokumentów) for the purposes of taking notes, such a bound set of documents shall be made and classified appropriately.

In accordance with paragraph 6.3, a bound set of documents for taking notes shall be created for each person concerned separately. It shall be deposited and made available only in the court’s or the prosecution’s secret registry.

D. Law on intelligence agencies

192. The law of 24 May 2002 on the Internal Security Agency and the Intelligence Agency (ustawa z dnia 24 maja 2002 r. o Agencji Bezpieczeństwa Wewnętrznego oraz Agencji Wywiadu) (“the 2002 Act”), adopted as a measure reforming the former structures of the secret services, set up two civilian intelligence agencies.

The Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego - also called “ABW” in Polish) is responsible for the protection of the State’s internal security and the State’s constitutional order (section 1).

The Intelligence Agency (also called “AW” in Polish) is responsible for “the external protection of the State” (section 2). This includes foreign intelligence.

According to section 3 of the 2002 Act, the heads of both agencies are subordinate to the Prime Minister. Their activities are subject to Parliament’s oversight - through the Parliamentary Commission for Special Services (Sejmowa Komisja do Spraw Służb Specjalnych).

193. The tasks of the Intelligence Agency are enumerated in section 6(1). They include, among other things, the following:

1) obtaining, analysing, processing and transmitting to the relevant authorities information that may have a vital importance for security and international position of the Republic of Poland and its economic and defence potential;

2) identifying and counteracting external threats to the security, defence, independence and territorial integrity of the Republic of Poland;

...

5) identifying international terrorism, extremism and international organised-crime groups;

...

7) identifying and analysing threats occurring in regions of tensions, conflicts and international crisis which have an impact on the State’s security and taking actions aimed at eliminating those threats;

...

9) taking other actions specified in other laws and international agreements.”

194. Section 6(3) stipulates that the Intelligence Agency’s activities in the territory of Poland may be conducted exclusively in connection with their activities abroad.

195. Section 7 states, in so far as relevant, as follows:

“1. The Prime Minister determines the directions for the agencies’ actions by means of guidelines.

...

3. The heads of the agencies, each within his competence, shall submit, by 31 January, a annual report on the agency’s activities for the previous calendar year.”

196. Section 8 provides:

“1. In order to accomplish the agencies’ tasks, the heads of the agencies, each within his competence, may cooperate with the relevant authorities and services of other States.

2. Cooperation referred to in section 1 may be sought after obtaining the Prime Minister’s consent.”

197. Chapter 2 of the 2002 Act deals with the Cabinet Committee for Special Services (Kolegium do Spraw Służb Specjalnych) - a consultative-advisory body chaired by the Prime Minister.

Pursuant to section 11, the Committee exercises its competence in respect of “programming, supervising and coordinating” activities of special services, namely the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency (Służba Kontrwywiadu Wojskowego), the Military Intelligence Agency (Służba Wywiadu Wojskowego) and the Central Anti-Corruption Bureau (Centralne Biuro Antykorupcyjne), as well as activities undertaken in view of State security by the police, the Border Guard, the Military Police, the Prison Service, the Office for the Government Protection, the Customs, military information services and the tax authorities.

The Committee comprises the Prime Minister, Secretary to the Committee, the Minister for the Interior, the Minister for Foreign Affairs, the Minister for Defence, the Minister for the Treasury and the Head of the National Security Bureau (Biuro Bezpieczeństwa Narodowego) from the President of Poland’s Chancellery. The Heads of the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency, the Military Intelligence Agency, the Central Anti-Corruption Bureau and the President of the Parliamentary Committee for Special Services attend the Committee’s meetings (section 12(2)-(3)).

198. Under section 18(1), the Heads of the Internal Security Agency and the Intelligence Agency, each within his competence, have a duty “to supply promptly” the President of the Republic of Poland and the Prime Minister with any information that may have a vital importance for Poland’s security and its international position.

199. The Head of the Intelligence Agency may allow officers or staff members to supply classified information to a specific person or institution (section 39). He has full discretion in granting or refusing the disclosure of classified information. Only if so ordered by the First President of the Supreme Court in the review procedure under section 39(6) is he obliged to disclose classified information. This exception, however, is limited to proceedings for crimes against peace, crimes against humanity and war crimes referred to in Article 105 § 1 of the Criminal Code (see paragraph 181 above) and serious fatal offences.

Section 39(6) reads, in so far as relevant, as follows:

“If, despite a request from a court or prosecutor made in connection with criminal proceedings for an offence defined in Article 105 § 1 of the Criminal Code or serious offence against human life or an offence against life and health causing death, [the head of the Intelligence Agency] has refused to exempt an officer or staff member ... from his duty to maintain secrecy of materials classified ‘secret’ or ‘top secret’ or refused to disclose materials ... classified ‘secret or ‘top secret’, he shall submit the materials requested and [his] explanation to the First President of the Supreme Court.

If the First President of the Supreme Court finds that granting the court’s or the prosecutor’s request is necessary for the proper course of the proceedings, the head of ... the Intelligence Agency is obliged to issue an exemption from secrecy or to disclose materials covered by secrecy.”

V. RELEVANT INTERNATIONAL LAW

A. Vienna Convention on the Law of Treaties

200. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Poland is a party, provide as follows:

Article 26
“Pacta sunt servanda”

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Article 27
Internal law and observance of treaties

“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ...”

B. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

201. The relevant parts of the Articles (“the ILC Articles”), adopted on 3 August 2001 (Yearbook of the International Law Commission, 2001, vol. II), read as follows:

Article 7
Excess of authority or contravention of instructions

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

...”

Article 14
Extension in time of the breach of an international obligation

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

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

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

Article 15
Breach consisting of a composite act

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

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

Article 16
Aid or assistance in the commission of an internationally wrongful act

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

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

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

C. International Covenant on Civil and Political Rights

202. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Poland is a party, reads as follows:

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

D. The United Nations Torture Convention

203. One hundred and forty-nine States are parties to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

204. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law.

Article 3 provides:

“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

205. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

E. UN General Assembly Resolution 60/147

206. The UN General Assembly’s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows:

“24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations”.

VI. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

207. The applicant, Mr Al Nashiri and third-party interveners submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below.

A. United Nations Organisation

1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002

208. The UN High Commissioner for Human Rights stated as follows:

“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.”

2. Statement of the International Rehabilitation Council for Torture

209. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture (“the IRCT”) submitted a statement in which it expressed its concern over the United States’ reported use of “stress and duress” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003.

3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)

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

B. Other international organisations

1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002

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

2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002

212. This report included the following passage:

“... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.”

3. Human Rights Watch, “United States: Reports of Torture of Al-Qaeda Suspects”, 26 December 2002

213. This report referred to the Washington Post’s article: “U.S. Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to “stress and duress” techniques, including “standing or kneeling for hours” and being “held in awkward, painful positions”.

It further stated:

“The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.”

4. International Helsinki Federation for Human Rights, “Anti-terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003

214. The relevant passage of this report read as follows:

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

5. Amnesty International Report 2003 - United States of America, 28 May 2003

215. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles”) and the conditions of detention (“they were held without charge or trial or access to courts, lawyers or relatives”). It further stated:

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

6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003

216. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6.

7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003

217. The relevant passage of this report read as follows:

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

8. Amnesty International, “Incommunicado detention/Fear of ill-treatment”, 20 August 2003

218. The relevant passage of this report read as follows:

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

9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004

219. The ICRC expressed its position as follows:

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

10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005

220. On 6 November 2005 the Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”), which indicated Poland’s complicity in the CIA rendition programme. It was given 2 days after the Washington Post had published material revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries” (see also paragraph 228 below).

221. The statement read, in so far as relevant, as follows:

“Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post’s allegations that there were detention facilities in Eastern Europe.

Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P - a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 - landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research.

According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ...

On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ...

Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in the Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees.

Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.

Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al-Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 ....

Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings.”

11. Human Rights Watch - List of Ghost Prisoners Possibly in CIA Custody of 30 November 2005

222. On 30 November the Human Rights Watch published a “List of Ghost Prisoners Possibly in CIA Custody” (“the 2005 HRW List”), which included the applicant. The document reads, in so far as relevant, as follows:

“The following is a list of persons believed to be in U.S. custody as ‘ghost detainees’ - detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other "ghost detainees" held by the United States.

Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.

Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.

The current location of these prisoners is unknown.

List, as of December 1, 2005:

...

4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘George W. Bush: Record of Achievement. Waging and Winning the War on Terror’, available on the White House website. Previously listed as ‘disappeared’ by Human Rights Watch.

...

9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘George W. Bush: Record of Achievement, Waging and Winning the War on Terror’, available on the White House website. Previously listed as ‘disappeared’ by Human Rights Watch.

C. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003

223. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows:

“1. The Parliamentary Assembly:

i. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States’ military custody - some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities; ....

2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful.

3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as “unlawful combatants” - a definition that is not contemplated by international law.

4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary.

5. The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel.

6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody.

7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States.

8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights.

9. In view of the above, the Assembly strongly urges the United States to:

i. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations;

ii. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status;

iii. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately.

10. The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees. ...

13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.”

D. Media reports and articles

1. International media

224. On 2 April 2002 ABC News reported:

“US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea. Sources say it’s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used.”

225. Two Associated Press reports of 2 April 2002 stated:

“Zubaydah is in US custody, but it’s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay, Cuba, or will be transported to a separate location.”

and:

“US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or transferred to a third country.”

226. On 26 December 2002 the Washington Post published a detailed article entitled “Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities”. The article referred explicitly to the practice of rendition and summarised the situation as follows:

“a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ...

‘If you don’t violate someone’s human rights some of the time; you probably aren’t doing your job,’ said one official who has supervised the capture and transfer of accused terrorists.”

The article also noted that

“there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services”.

The Washington Post also gave details on the rendition process:

"The takedown teams often ‘package’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape."

The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture.

227. On 2 November 2005 the Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist. She referred to countries involved as “Eastern-European countries”.

It read, in so far as relevant, as follows:

“The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.

The existence and locations of the facilities - referred to as ‘black sites’ in classified White House, CIA, Justice Department and congressional documents - are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

...

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency’s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay.

The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.

...

It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA’s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA’s approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘waterboarding’, in which a prisoner is made to believe he or she is drowning.

...

The contours of the CIA’s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency’s prisons.

More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq.

The detainees break down roughly into two classes, the sources said.

About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category - in Thailand and on the grounds of the military prison at Guantánamo Bay - were closed in 2003 and 2004, respectively.

A second tier - which these sources believe includes more than 70 detainees - is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as "rendition." While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction.

...

The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials.

...

The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others - mainly Russia and organized crime.

...

By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ...”

228. On 5 December 2005, ABC News published a report, listing the names of twelve top Al Qaeda suspects held in Poland, including the applicant and Mr Abu Zubaydah. This report was available on the Internet for only a very short time; it was withdrawn from ABC’s webpage shortly thereafter following the intervention of lawyers on behalf of the network’s owners.

2. Polish media

229. On 12 January 2002 a daily Rzeczpospolita discussed an Amnesty International report about 20 Guantànamo prisoners being given intoxicants, handcuffed, shaved and hooded and reported that then the US Defense Secretary Donald Rumsfeld had said that Guantànamo detainees would not be treated as prisoners of war, because they were illegal fighters who did not have rights.

230. On 25 January 2002 the same newspaper reported that the US Government had refused to allow the Human Rights Watch to visit the detention centre in Guantànamo Bay and that the detainees had not had lawyers or access to legal representation.

231. On 15 January 2003 Rzeczpospolita referred to and discussed a Human Rights Watch report documenting human rights abuses in the course of the Bush administration’s counter-terrorism operations. In May 2003, the newspaper reported on criticism by the Amnesty International of the US practice of detaining hundreds of Afghans suspected of Al’Qaeda membership at its base in Guantànamo. According to the report, they remained in a “legal black hole”, held without charge, without access to lawyers, and without the status of prisoner.

232. On 17 July 2003 a daily Gazeta Wyborcza reported the deplorable living conditions of detainees held at Guantànamo Bay, stating that the majority of the 680 prisoners were kept in 2.4 x 2m cages, in which the temperature often reached 38 degrees. Detainees had the right to a 30 minute walk only three times a week - the youngest detainees were under 16 and the eldest well over 70.

233. On 6 August 2003 Rzeczpospolita reported on the detention of two UK detainees among the 680 held indefinitely at Guantànamo, and the consequent public outrage in the UK. It emphasised that this practice of detention was a clear human rights violation and that the situation was viewed by the world as further proof that, when it came to the war on terror, America would not hesitate to brush away human rights and other legalities as insignificant.

3. Interview with Mr A. Kwaśniewski, former President of Poland

234. On 30 April 2012 Gazeta Wyborcza published an interview with Mr Aleksander Kwaśniewski, President of Poland in 2000-2005. Mr Kwaśniewski, in response to questions concerning the alleged CIA prison in Poland, said, among other things:

“Of course, everything took place with my knowledge. The President and the Prime Minister agreed to the intelligence co-operation with the Americans, because this was what was required by national interest. After attacks on the World Trade Center we considered it necessary on account of exceptional circumstances. Subsequent, post-11 September attacks, confirmed us in this [decision]. In attacks in New York, London and Madrid Polish nationals were also killed. This was our duty, and cooperation of the Government and the President was exemplary. ...

It was not us who arrested the terrorists, it was not us who interrogated them. We assumed that our allies respect the law. If something was not in accordance with the law, this is the Americans’ responsibility and they should be accountable. ...

The decision to cooperate with the CIA carried a risk that the Americans would use inadmissible methods. But if a CIA agent brutally treated a prisoner in the Warsaw Mariott Hotel, would you charge the management of that hotel for the actions of that agent? We did not have knowledge of any torture.”

VII. INTERNATIONAL INQUIRIES RELATING TO CIA SECRET DETENTIONS AND RENDITIONS OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING POLAND

A. Council of Europe

1. Procedure under Article 52 of the Convention

235. On 21 November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to the States Parties to the Convention, including Poland.

The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed.

236. The Polish Government replied on 10 March 2006. The letter was signed by Mr W. Waszczykowski, the Undersecretary of State. It read, in so far as relevant, as follows:

“... The findings of the Polish Government’s internal enquiry into the alleged existence in Poland of secret detention centers and related over flights fully deny the allegations in the debate. ...

According to my knowledge based on the above mentioned findings of the enquiry, the official Polish statements should be understood in a sense that it has not been in that matter any facts in Poland in contravention of the internal laws, or international treaties and conventions, to which our State is a party. ...

We stated in our letter of February, 17th: ‘With reference to the responsibility for the commitment of an offence it should be noted that under Article 5 of the Penal Code, the Polish judicial organs have jurisdiction with respect to any prohibited act committed within the territory of the Republic of Poland, or on a Polish vessel or aircraft, unless an international agreement to which Poland is a party stipulates otherwise.’ It means that any person, including members of Polish and foreign agencies, is under the same jurisdiction of Polish Penal Code, without any differentiation.

We can clarify it farther in a following way: the activities of foreign agencies on Polish territory could be either to the detriment of Poland’s interests or in cooperation with our services. In the first case, we quoted an Article 130 of the Polish Penal Code, prohibiting and punishing the activities of foreign intelligence agencies to the detriment of the Republic of Poland. In the second case, we informed that general ‘civil supervision (of Poland’s intelligence), both by Parliament and Government,... also controls the Polish Foreign Intelligence Agency in matters relating to its cooperation with partner secret services of other States.

It is necessary to add that, according to the Polish Ministry of Justice’ opinion, no one international agreement to which Poland is a party could exclude members of civil foreign agency from the above described principle and practice of Polish jurisdiction.

Exemptions in that regard in favor of the foreign states, envisaged in the NATO - SOFA Agreement, are applicable only to members of the armed forces or of their civilian staff, and only in specified cases, assuring the adequate law enforcement.”

237. On 1 March 2006 the Secretary General released his report on the use of his powers under Article 52 of the Convention (SG/Inf (2006) 5) of 28 February 2006 based on the official replies from the member states.

2. Parliamentary Assembly’s inquiry - the Marty Inquiry

238. On 1 November 2005 the Parliamentary Assembly of the Council of Europe launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur.

239. On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states’ international legal obligations, particularly under the European Convention on Human Rights.

(a) The 2006 Marty Report

240. On 7 June 2006 Senator Marty presented to the Parliamentary Assembly his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 244 above), revealing what he called a global “spider’s web” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states, including Poland. The document, as published by the Parliamentary Assembly, is entitled “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states” (Doc. 10957) and commonly referred to as “the 2006 Marty Report”.

241. Chapter 2.6.3 of the 2006 Marty Report refers to Poland. It states, in so far as relevant, as follows:

“63. Poland was likewise singled out as a country which had harboured secret detention centres.

64. On the basis of information obtained from different sources we were able to determine that persons suspected of being high level terrorists were transferred out of a secret CIA detention facility in Kabul, Afghanistan in late September and October 2003. During this period, my official database shows that the only arrival of CIA-linked aircraft from Kabul in Europe was at the Polish airport of Szymany. The flights in question, carried out by the well-known rendition plane’ N313P, bear all the hallmarks of a rendition circuit.

...

67. Szymany is described by the Chairman of the Polish delegation to PACE as a ‘former Defence Ministry airfield’, located near the rural town of Szczytno in the North of the country. It is close to a large facility used by the Polish intelligence services, known as the Stare Kiejkuty base. Both the airport and the nearby base were depicted on satellite images I obtained in January 2006.”

The attitude of the Polish authorities displayed during the inquiry was described in the following way:

68. It is noteworthy that the Polish authorities have been unable, despite repeated requests, to provide me with information from their own national aviation records to confirm any CIA-connected flights into Poland. In his letter of 9 May 2006, my colleague Karol Karski, the Chairman of the Polish delegation to PACE, explained:

‘I addressed the Polish authorities competent in gathering the air traffic data, related to these aircraft numbers... I was informed that several numbers from your list were still not found in our flight logs’ records. Being not aware about the source of your information connecting these flight numbers with Polish airspace, I am not able, [nor are] the Polish air traffic control authorities, to comment on the fact of missing them in our records.’

69. Mr. Karski also made the following statement, which reflects the position of the Polish Government on the question of CIA renditions:

‘According to the information I have been provided with, none of the questioned flights was recorded in the traffic controlled by our competent authorities - in connection with Szymany or any other Polish airport.’

70. The absence of flight records from a country such as Poland is unusual. A host of neighbouring countries, including Romania, Bulgaria and the Czech Republic have had no such problems in retrieving official data for the period since 2001. Indeed, the submissions of these countries, along with my data from Eurocontrol, confirm numerous flights into and out of Polish airports by the CIA-linked planes that are the subject of this report.

71. In this light, Poland cannot be considered to be outside the rendition circuits simply because it has failed to furnish information corroborating our data from other sources. I have thus presented in my graphic the suspected rendition circuit involving Szymany airport, in which the landing at Szymany is placed in the category of “detainee drop-off” points.”

243. In Chapter 8.2 concerning parliamentary investigations undertaken in certain member states, the report refers to Poland under the title “Poland: a parliamentary inquiry, carried out in secret”:

“252. A parliamentary inquiry into the allegations that a ‘secret prison’ exists in the country has been conducted behind closed doors in Poland. Promises made beforehand notwithstanding, its work has never been made public, except at a press conference announcing that the inquiry had not found anything untoward. In my opinion, this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations.”

244. Chapter 11 contains conclusions. It states, inter alia, the following:

“280. Our analysis of the CIA rendition’ programme has revealed a network that resembles a ‘spider’s web’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American ....

282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘rendition circuits’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption - already based on other elements - that these landings are detainee drop-off points that are near to secret detention centres.”

...

287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are "guilty" for having tolerated secret detention sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations. ...”

(b) The 2007 Marty Report

245. On 11 June 2007 the Parliamentary Assembly adopted the second report prepared by Senator Marty (“the 2007 Marty Report”) (Doc. 11302.rev.), revealing that high value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005.

According to the report, in Poland the centre was located at the Stare Kiejkuty intelligence training base.

The report relied, inter alia, on the cross-referenced testimonies of over 30 serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system.

246. The introductory remarks referring to the establishment of facts and evidence gathered read, in so far as relevant, as follows:

“7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, the Washington Post simply referred generically to ‘eastern European democracies’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of ‘high value’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.

8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities - this was information they did not ‘need to know.’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA’s illegal activities on their territories.

...

10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which - of course - also remain secret. ...”

12. Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials - for instance, the analysis of thousands of international flight records - and a network of sources established in numerous countries. With very modest means, we had to do real “intelligence” work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ...”

247. In paragraph 30 of the report it is stressed that “the HVD programme ha[d] depended on extraordinary authorisations - unprecedented in nature and scope - at both national and international levels. In paragraph 75, it was added that:

“75. The need for unprecedented permissions, according to our sources, arose directly from the CIA’s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades.

...

83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA’s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO).

....”

248. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “black sites” for high value detainees. This part of the document read, in so far as relevant, as follows:

“112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.

...

115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘deep’ forms of cooperation that afford - for example - ‘infrastructure’, ‘material support and / or ‘operational security’ to the CIA’s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘host nation’ defence agreements - whereby one country is conducting operations it perceives as being vital to its own national security on another country’s territory.

116. The classified ‘host nation’ arrangements made to accommodate CIA ‘black sites’ in Council of Europe member states fall into the last of these categories.

249. The sources and findings in respect of bilateral agreements concerning Poland read as follows:

117. The CIA brokered ‘operating agreements’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference.

118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected.

119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/ or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe.

120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another - count as credible, plausible and authoritative.

...

126. The United States negotiated its agreement with Poland to detain CIA High-Value Detainees on Polish territory in 2002 and early 2003. We have established that the first HVDs were transferred to Poland in the first half of 2003. In accordance with the operational arrangements described below, Poland housed what the CIA’s Counterterrorism Centre considered its ‘most sensitive HVDs’, a category which included several of the men whose transfer to Guantánamo Bay was announced by President Bush on 6 September 2006.”

250. Paragraphs 167-179 describe the cooperation between the US and Polish State authorities, including the intelligence services, the military authorities, the Border Guard, the Customs Office and the Polish Air Navigation Services. The relevant passages read as follows:

“167. Since the May 2002 ‘quasi-reform’ of its secret services, Poland has had two civilian intelligence agencies the Internal Security Agency (Agencja Bezpieczeństwa Wewnetrznego, or ABW); and the ... Intelligence Agency (Agencja Wywiadu, or AW) Neither of these services was considered a viable choice as a CIA partner for the sensitive operations of the HVD programme m Poland, precisely because they are ‘subject to civil supervision, both by Parliament and Government’. ...

168. According to our sources, the CIA determined that the bilateral arrangements for operation of its HVD programme had to remain absolutely outside of the mechanisms of civilian oversight. For this reason the CIA’s chosen partner intelligence agency in Poland was the Military Information Services (Wojskowe Służby Informacyjne, or WSI), whose officials are part of the Polish Armed Forces and enjoy ‘military status in defence agreements under the NATO framework. The WSI was able to maintain far higher levels of secrecy than the two civilian agencies due to its recurring ability to emerge ‘virtually unscathed’ from post-Communism reform processes designed at achieving democratic oversight. ....

170. From our interviews with current and former Polish military intelligence officials, we have established that the WSI’s role in the HVD programme comprised two levels of co-operation. On the first level, military intelligence officers provided extraordinary levels of physical security by setting up temporary or permanent military-style ‘buffer zones’ around the CIA’s detainee transfer and interrogation activities. This approach was deployed most notably to protect the CIA’s movements to and from, as well as its activities within, the military training base at Stare Kiejkuty. Classified documents, the existence of which was made known to our team describe how WSI agents performed these security role under the guise of a Polish Army Unit (Jednostka Wojskowa) denoted by the code JW-2669, which was the formal occupant of the Stare Kiejkuty facility.

171. On the second level, the WSI’s assistance depended to a large extent on its covert penetration of other state and parastatal institutions through its collaboration with undercover ‘functionaries’ in their ranks. Our sources have indicated to us that WSI collaborators were present within institutions including the Polish Air Navigation Services Agency (Polska Agencja Żeglugi Powietrznej), where they assisted m disguising the existence and exact movements of incoming CIA flights; the Polish Border Guard (Straż Graniczna), where they ensured that normal procedures for incoming foreign passengers were not strictly applied when those CIA flights landed; and the national Customs Office (Główny Urząd Celny), where they resolved irregularities in the non-payment of fees related to CIA operations Thus the military intelligence partnership brought with it influence throughout a society-wide undercover community, none of which was checked by the conventional civilian oversight mechanisms.”

251. Paragraphs 174-179 contain conclusions as to who were the Polish State officials responsible for authorising Poland’s role in the CIA’s HVD programme. They read, in their relevant part:

“174. During several months of investigations, our team has held discussions with various Polish sources, including civilian and military intelligence operatives, representatives of state or municipal authorities, and high-ranking officials who hold first-hand knowledge of the operations of the HVD programme in Poland. Based upon these discussions, which have come to the same conclusions, my inquiry allows me to state that some individual high office-holders knew about and authorised Poland’s role in the CIA’s operation of secret detention facilities for High-Value Detainees on Polish territory, from 2002 to 2005. The following persons could therefore be held accountable for these activities: the President of the Republic of Poland, Aleksander KWAŚNIEWSKI, the Chief of the National Security Bureau (also Secretary of National Security Committee), Marek SIWIEC, the Minister of National Defence (Ministerial oversight of Military Intelligence), Jerzy SZMAJDZINSKI, and the Head of Military Intelligence, Marek DUKACZEWSKI.

175. In my analysis the hierarchy for control of the Polish Military Information Services, or WSI, was chronically lacking in formal oversight and independent monitoring. As a result the structure described here from 2002 to 2005 depended to a great extent on close relationships of trust and professional familiarity, both among the Polish principals and between the Poles and their American counterparts. Several of our sources characterised the bonds between these four individuals as being a combination of loyal personal allegiance (‘we all serve one another’) and strong common notions of national duty (‘... but first we serve the Republic of Poland’).

176. There was complete consensus on the part of our key senior sources that President KWAŚNIEWSKI was the foremost national authority on the HVD programme. One military intelligence source told us: ‘Listen, Poland agreed from the top down... From the President - yes... to provide the CIA all it needed.’ Asked whether the Prime Minister and his Cabinet were briefed on the HVD programme, our source said: ‘Even the ABW [Internal Security Agency] and AW [Foreign Intelligence Agency] do not have access to all of our classified materials. Forget the Prime Minister, it operated directly under the President’.

177. Our investigations have revealed that the state office from which much of the strength of this Polish accountability structure derived was the National Security Bureau (Biuro Bezpieczeństwa Narodowego, or BBN), located in the Chancellery of President Kwasniewski. Our sources confirmed to us that the bilateral operational arrangements for the HVD programme in Poland were ‘negotiated on the part of the President’s office by the National Security Bureau [BBN]’.

178. Marek Dukaczewski, an outstanding military intelligence officer ultimately promoted to the rank of General, served the BBN in the Chancellery of his close friend Aleksander Kwasniewski for the first five years of the latter’s Presidency, from 1996 to 2001. Mr Dukaczewski worked directly alongside Marek Siwiec during this period, whilst Mr Siwiec was a Secretary of State in the Presidential Chancellery and then became Chief of the BBN. Jerzy Szmajdzinski was appointed Minister of National Defence for Mr Kwasniewski’s second term, in October 2001. Shortly afterwards, Mr Dukaczewski was nominated Head of the Military Information Services, the WSI, starting in December 2001.

179. Besides this accountability structure, which remained in place from the immediate aftermath of the 11 September 2001 attacks throughout Poland’s involvement in the CIA’s covert HVD programme, probably no other Polish official had knowledge of it. Indeed, the ‘highest level of classification’ at national and intergovernmental levels, understood to match NATO’s ‘Cosmic Top Secret’ category, still attaches to the information pertaining to operations in Poland. ...”

252. In paragraphs 180-196 the 2007 Marty Report describes “The anatomy of CIA secret transfers and detention in Poland”. Those paragraphs read, in so far as relevant, as follows:

“180. Notwithstanding the approach of the Polish authorities towards this inquiry, our team was able to uncover new documentary evidence from two separate Polish sources showing actual landings in Poland by aircraft associated with the CIA.

181. These sources corroborate one another and provide the first verifiable records of a number of landings of ‘rendition planes’ significant enough to prove that CIA detainees were being transferred into Poland I can now confirm that at least ten flights by at least four different aircraft serviced the CIA’s secret detention programme in Poland between 2002 and 2005. At least six of them arrived directly from Kabul, Afghanistan during precisely the period in which our sources have told us that High-Value Detainees (HVDs) were being transferred to Poland. Each of these flights landed at the same airport I named m my 2006 report as a detainee drop-off point Szymany.

182. The most significant of these flights, including the aircraft identifier number, the airport of departure (ADEP), as well as the time and date of arrival into Szymany, are the following

I. N63MU from DUBAI, arrived in SZYMANY at 14h56 on 5 December 2002

...

V. N379P from KABUL, arrived in SZYMANY at 01 h00O on 5 June 2003

...

VII N313P from KABUL, arrived in SZYMANY at 21 h00 on 22 September 2003” ...

185. The aviation services provider customarily used by the CIA, Jeppesen International Trip Planning, filed multiple ‘dummy’ flight plans for many of these flights The ‘dummy’ plans filed by Jeppesen - specifically, for the N379P aircraft - often featured an airport of departure (ADEP) and/or an airport of destination (ADES) that the aircraft never actually intended to visit. If Poland was mentioned at all in these plans, it was usually only by mention of Warsaw as an alternate, or back-up airport, on a route involving Prague or Budapest, for example Thus the eventual flight paths for N379P registered in Eurocontrol’s records were inaccurate and often incoherent, bearing little relation to the actual routes flown and almost never mentioning the name of the Polish airport where the aircraft actually landed - Szymany.

186. The Polish Air Navigation Services Agency (Polska Agencja Żeglugi Powietrznej), commonly known as PANSA, also played a crucial role in this systematic cover-up PANSA’s Air Traffic Control in Warsaw navigated all of these flights through Polish airspace, exercising control over the aircraft through each of its flight phases right up to the last phase, when control was handed over to the authority supervising the airfield at Szymany, immediately before the aircraft’s landing PANSA navigated the aircraft m the majority of these cases without a legitimate and complete flight plan having been filed for the route flown.

...

190. The analysis of ‘data strings’ has also enabled me to confirm further intricate details of the ‘anatomy’ of these CIA clandestine operations For example, each of these flights was operated under a ‘special status’ or STS designation. The aircraft were thereby exempted from adhering to the normal rules of air traffic flow management (ATFM), and did not, for example, have to wait at airports for approved departure slots. Since such exemptions are only granted when specifically authorised by the relevant national authority, they provide further evidence of Polish complicity in the operations. The clearest proof of Poland’s knowledge and authorisation of such landings is demonstrated by the following two-line message, contained in several ‘data strings" for flights of N379P in 2003:

‘STS/ATFM EXEMPT APPROVED

POLAND LANDING APPROVED’

...”

253. In conclusion of this section, reference is made to the attitude displayed by the Polish authorities to the Marty inquiry:

“192. In concluding this section it is only fitting that I should note here, with considerable regret that the cover-up of CIA flights into Szymany seems to have carried over into the approach adopted by the Polish authorities towards my inquiry on the specific question of national aviation records. In over eighteen months of correspondence, Poland has failed to furnish my inquiry with any data from its own records confirming CIA-connected flights into its airspace or airports. The excuses from the Polish authorities for having failed to do so unfortunately do not seem to be credible.”

254. Paragraph 197 explains in a more detailed manner the procedure for receiving High-Value Detainees into CIA detention in Poland:

“197. Our enquiry regarding Poland included talks with Polish airport employees, civil servants, security guards, Border Guards and military intelligence officials who hold first-hand knowledge of one or more of the undeclared flights into Szymany Their testimonies are crucial in establishing what happened in the time after these ClA-associated aircraft landed at Szymany The following account is a compilation of testimonies from our confidential sources about these events.

...

- Each of these landings was preceded, usually less than 12 hours in advance, by a telephone call to Szymany Airport from the Warsaw HQ of the Border Guards (Straż Graniczna), or a military intelligence official, informing the Director Mr Jerzy Kos of an arriving ‘American aircraft’.

- The airport manager, who assumed the flights were coming from the United States, was instructed to adhere to strict protocols to prepare for the flights, including cleaning the runways of all other aircraft and vehicles; and making sure that all Polish staff were brought in to the terminal building from the vicinity of the runway, including local security officials and airport employees

- The perimeter and grounds of the airport were secured by military officers and Border Guards, the latter of whom were registered on a roll-call document that lists names of those present on more than five dates between 2002 and 2005

- American officials from the nearby Stare Kiejkuty intelligence training base assumed ‘control’ on the dates in question, arriving in several passenger vans m advance of the landing; ‘everything Americans’, said one Polish source present for several landings, ‘even the drivers [of the vans] were Americans’

- A ‘landing team’ comprising American officials waited at the edge of the runway, in two or three vans with their engines often running; the aircraft touched down in Szymany and taxied to a halt at the far end of the runway, several hundred metres (and out of visible range) from the four-storey terminal control tower.

- The vans drove out to the far end of the runway and parked at close proximity to the aircraft; officials from within the vans were said to have boarded the aircraft ‘every time’, although it is not clear whether any then stayed on board

- All the officers charged with ‘processing’ the passengers on these aircraft were Americans; no Polish eye-witness has yet come forward to state whether or not any detainees disembarked the aircraft upon any of these landings - indeed, it may be that no Polish eye-witness to such an event exists.

- However, asked where the HVDs actually entered Poland, one of our sources in Polish military intelligence confirmed that ‘it was on the runway of Szczytno-Szymany’; another said ‘they come on planes and they entered at this airport’.

- Documentation, in Polish, attests to persons having been ‘picked up’ [verbal translation] at Szczytno-Szymany in conjunction with at least two aircraft landings in 2003; the documentation also refers to the dispatch of vehicles to the airport from the military unit stationed at the Stare Kiejkuty facility.

- Having spent only a short time next to the aircraft after each landing, the vans then drove back past the side of the terminal building, without stopping, before leaving airport premises through the front security gate; the vans put their ‘headlights up to full level’ and airport officials say they ‘turned our eyes away’.

- The vans then drove less than two kilometres along a simple tarmac road, lined by thick pine forest on both sides, through an area which was entirely out of bounds to private or commercial vehicles during these procedures, having been cordoned off for ‘military operations’; at the end of the tarmac road, the vans travelled north-east beyond Szczytno for approximately 15 to 20 minutes before joining an unpaved access road next to a lake.

- At the end of this access road they reached an entrance of the Stare Kiejkuty intelligence training base, where multiple sources have confirmed to me that the CIA held High-Value Detainees (HVDs) in Poland.”

255. Referring further to the level of involvement of the Polish authorities, the report, in paragraphs 198-199 stated the following:

“198. The stringent limitations on information about what happened to detainees ‘dropped-off’ at Szymany are perhaps the best example of the ‘need-to-know’ principle of secrecy in practice. Polish officials were not involved in the interrogations or transfers of HVDs, nor did they have personal contact. In explaining his understanding of HVD treatment or conditions in detention, one Polish source said: ‘I have no understanding of detainee treatment. We were not ‘treating’ the detainees. Those were the responsibilities of the Americans.’

199. We were told that senior Polish military intelligence officials who visited Stare Kiejkuty were ordered to ‘limit rotation and operational demands on Polish officers to make the HVD programme work’. Beyond this fleeting insight, however, neither Polish nor American sources who discussed the HVD programme with us would agree to speak about the exact ‘operational details’ of secret detentions at Stare Kiejkuty, nor would they confirm how long it was operated for, which other facilities were used as part of the same programme in Poland, nor how and when exactly the detainees left the country.”

256. On 16 September 2011 the Parliamentary Assembly of the Council of Europe adopted the third report prepared by Senator Marty, entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (“the 2011 Marty Report”), which describes the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe’s member states.

257. The summary of the report reads:

“Secret services and intelligence agencies must be held accountable for human rights violations such as torture, abduction or renditions and not shielded from scrutiny by unjustified resort to the doctrine of ‘state secrets’, according to the Committee on Legal Affairs and Human Rights.

The committee evaluates judicial or parliamentary inquiries launched after two major Assembly reports five years ago named European governments which had hosted CIA secret prisons or colluded in rendition and torture (including Poland, Romania, Lithuania, Germany, Italy, the United Kingdom and the former Yugoslav Republic of Macedonia).

Prosecutors in Lithuania, Poland, Portugal and Spain are urged to persevere in seeking to establish the truth and authorities in the United States are called on to co-operate with them. The committee considers that it is possible to put in place judicial and parliamentary procedures which protect ‘legitimate’ state secrets, while still holding state agents accountable for murder, torture, abduction or other human rights violations.”

258. Conclusions, in the section concerning “Assessment of the situation and the efforts being made”, read, in so far as relevant:

“Numerous European governments seem to have accepted the doctrine of the previous US Administration: terrorism is a phenomenon that cannot be dealt with by the judiciary and, to the extent that one claims to be at war, the Geneva Conventions are not or only very partially applicable. Worse: security must have precedence over freedom, as if the two concepts were irreconcilable. It is obvious that over the last years, also due to the overdramatisation of the ‘war against terrorism’, the balance between the different powers of state has shifted in favour of the executive, to the detriment of parliament and of the judiciary. Parliaments are not without blame for this situation. Numerous parliamentarians seem to give priority, all too often, to governmental and party-political solidarity rather than to their duty to assume their responsibility of critical scrutiny. Democracy, as we know, is based on a complex and delicate balance which must be protected carefully. I believe that it is precisely up to the parliamentarians who belong to this Assembly to be particularly vigilant on this point and to be at the forefront to defend the fundamental principles of the separation of powers and of ‘checks and balances’. The systematic and arbitrary invocation of the state secrecy privilege, in particular for the purpose of ensuring the impunity of public officials, is a dangerous movement against which parliamentarians must be the first to react.”

259. Paragraphs 9-13 relate to Poland. Their relevant parts read:

“9. In Poland judicial proceedings which looked quite promising have so far failed to produce any results, also because of the American authorities’ refusal to provide the requested judicial assistance. The first request in March 2009 was rejected in October 2009. The American authorities have not yet given a decision on the second request, lodged on 22 March 2011. One interesting development came when Abd al Rahim al-Nashiri and Abu Zubaydah (who are currently being held at Guantánamo Bay) were granted victim status. But the prosecutorial enquiry started only in March 2008, almost three years after credible allegations of secret detentions in Poland first emerged.

10. The Polish Helsinki Foundation, in tandem with the Open Society Justice Initiative, has succeeded in obtaining and publishing some important information, including data collected by the Polish Air Navigation Services Agency (PANSA) on suspicious movements of aircraft belonging to CIA shell companies, information which the Polish authorities officially refused to disclose to us and to the European Parliament during our inquiries in 2006/2007. These data, along with those made available to the Helsinki Foundation by the Polish Border Guard, provide definite proof that seven CIA-associated aircraft landed at Szymany airport between 5 December 2002 and 22 September 2003.

11. The Polish Helsinki Foundation noted a positive change of attitude on the part of the prosecuting authorities, reporting that they have released more information of late and that their second request to the United States for judicial assistance shows how seriously they are taking the case. In a recent development, prosecutor Jerzy Mierzewski was removed from the file and replaced by the recently appointed deputy appellate prosecutor Waldemar Tyl. Adam Bodnar, of the Polish Helsinki Foundation, criticised this decision as ‘irrational’ and expressed his fear that sooner or later the Polish investigation would be discontinued, as had happened in Lithuania, for which there was ‘no objective reason’. The new prosecutor in charge of the case, Mr Tyl, called the worries ‘groundless. Time will tell.

12. The Polish prosecuting authorities have not yet secured the desired co-operation from the American authorities or even an opportunity to hear Mr al-Nashiri himself as a witness. But the data collected by the Polish Helsinki Foundation and the victims’ lawyers should be sufficient to confirm the presence at the Stare Kiejkuty site of half a dozen detainees and to identify the head of the ‘black site’ and at least one other person alleged to have committed acts which are described as ‘unauthorised and undocumented’ in the Report by the CIA Inspector General [the 2004 CIA Report] and which seem to correspond to the definition of torture in Article 3 of the European Convention on Human Rights (ETS No. 5, ‘the Convention’) as interpreted by the European Court of Human Rights (‘the Court’) in the case of Ireland v. United Kingdom. The Polish prosecuting authorities therefore have a duty, under the Court’s case law, to investigate these acts and prosecute those responsible, especially as one of them, a private contract worker, is not even covered by any form of immunity. ...”

B. European Parliament

1. The Fava Inquiry

260. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners - “the TDIP” and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe (see also paragraph 42 above). The Fava inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal. The TDIP also heard witnesses (see also paragraphs 267 and 293-302 below) and collected voluminous documentary evidence concerning the CIA flights in Europe.

It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.

261. The TDIP delegation comprising 13 members, including 3 members elected in respect of Poland, namely Ms B. Kudrycka, Mr J. Pinior and Mr M. Piotrowski, visited Warsaw from 8 November 2006 to 10 November 2006.

The delegation asked to meet twenty persons but eleven of them, including the current Minister for Defence, the current Minister for Foreign Affairs, the current Deputy Prime Minister, the former Minister for Defence, the current Chairman of the Parliamentary Committee for Special Services, the former Head of the Internal Security Agency, the former Chief of the Border Guards Unit responsible for controls at the Szymany airport and the current Minister Coordinator of Special Services declined to meet the delegation. However, the latter was represented by Mr Pasionek, the Undersecretary of State in the Chancellery of the Prime Minister. The former Head of the Intelligence Agency (Agencja Wywiadu), Mr Z. Siemiątkowski, also appeared before the delegation. As regards persons not connected with the State authorities, the delegation interviewed Mr M.A. Nowicki, the President of the Helsinki Foundation for Human Rights in Poland, Mr J. Jurczenko, the former director of the Szymany airport, Mr J. Kos, the former Chairman of the Board of the Szymany airport and 4 journalists.

262. As regards Poland, the Fava Report, in paragraph 178, noted that in the light of the available circumstantial evidence it was not possible to “acknowledge or deny that secret detention centres were based in Poland”. However, it further noted that seven of the fourteen detainees transferred from a secret detention facility to Guantánamo in September 2006 coincide with those mentioned in a report by ABS News published in December 2005 (see § 177 of the resolution cited in paragraph 269 below) listing the identities of twelve of Al’Qaeda suspects held in Poland.

In respect of the Polish Parliament inquiry, the report concluded that it had not been conducted independently and that the statements given to the Committee delegation were contradictory and compromised by confusion about flight logs.

263. Working document no. 9 on certain countries analysed during the work of the Temporary Committee (PE 382.420v02-00) produced together with the Fava Report in a section concerning Poland and allegations of the existence of a CIA detention facility on its territory, stated the following:

“A) ALLEGED EXISTENCE OF DETENTION CENTRE

Persons suspected of being terrorists were transferred by the CIA from Afghanistan to Poland, most probably using the small airport at Szymany.

At least one CIA secret prison was supposed to be operating in Poland, most probably from 2002 until autumn 2005, when it was shut down following media reports of its existence. The prison location was possibly a former Soviet air base, an intelligence facility or the airport itself. Around 10 high ranking al Qaeda members would have been held in this prison and subjected to the harshest interrogation techniques. The detention of prisoners was both illegal and secret.

As regards the parliamentary inquiry conducted in Poland (see also paragraphs 128-130 above) it reads, in so far as relevant:

B) NATIONAL OFFICIAL INQUIRIES

Polish government investigated the allegations in internal, secret enquiry. The government refused to present methodology of the enquiry to the Temporary Committee. The conclusion of the investigation without any background was made public, stating that the allegation is entirely not true.

...

In December 2005, Roman Giertych, chairman (to May 2006) of the Special Services Committee of the Sejm initially considered setting-up a special inquiry committee regarding the allegations. This proposal received opposition, among the others, from Zbigniew Wassermann (Minister Coordinator of Special Services). No such special inquiry committee was set-up but on 21 December 2005 the Committee held an in camera sitting with minister Zbigniew Wassermann and two heads of intelligence services Zbigniew Nowak (Agencja Wywiadu) and Witold Marczuk (Agencja Bezpieczeństwa Wewnętrznego). In fact, this was the only Parliament activity that dealt with the accusations and the Committee released no documentation or final statement in this regard. Unofficial statements by Committee members indicate that heads of special services proved in a comprehensive manner that no CIA prisons had existed in Poland.”

Referring to the alleged involvement of the Polish authorities in the CIA secret detentions, the document, states:

“C) ROLE OR ATTITUDE OF POLISH BODIES

To date, and since publication of the first news about alleged existence of the CIA prison and illegal transportation of prisoners, Poland has constantly denied any illegal involvement in any aspect of the accusation. The Polish authorities repeated their position by letter to Terry Davis, Secretary General of the Council of Europe: ‘The findings of the Polish Government’s internal enquiry into the alleged existence in Poland of secret detention centres and related over flights fully deny the allegations in the debate.’

On December 7, 2005, Aleksander Kwaśniewski, former President of Poland, rejected any allegation of the existence of secret CIA prisons in Poland. He made conflicting statements, namely that any decision taken by Polish authorities of this nature would have been brought to his attention and then that sometimes the secret services do not inform politicians of top secret operations. Subsequent denials have been made by Polish prime ministers and ministers of foreign affairs following each new allegation involving Poland.

Zbigniew Siemiątkowski, former Head of the Internal Security Agency (ABW) stated, in December 2005 and repeated that services under his authority - Polish civilian intelligence - were not engaged in any secret detention or illegal transportation of prisoners. Mr Siemiątkowski stated that Polish and American intelligence services have been cooperating very intensively, especially after 9/11. Mr Siemiątkowski stressed that any CIA activity in Poland must have prior agreement from Polish authorities and that Polish authorities had full knowledge of CIA activities in Poland. Consequently, he excluded the possibility of any CIA activity being in connection with the illegal detention or transportation of prisoners. He learnt about the alleged illegal CIA flights from press reports in November 2005.”

264. As regards the conduct displayed by the Polish authorities during the inquiry, the document states:

“Cooperation of official authorities with the Temporary Committee’s delegation was regrettably poor. The delegation was not able to meet any Parliamentary representatives. The government was reluctant to offer full cooperation to the TDIP investigation and to receive our delegation at an appropriate political level.

There was confusion about flight registers of CIA planes transferring through Poland. Polish authorities failed to present these logs directly to the Council of Europe as well as to journalists investigating the allegations. Different managers and former managers of the Szymany airport reported contradictory statements about existence of flight logs and eventually in November 2006 the Temporary Committee was provided by the airport owner with partial summary about CIA flights. The most complete logs of the flights were provided by Eurocontrol.”

265. The document also identified certain flights landing in Poland, which were associated with the CIA operations:

“D) FLIGHTS

Total Flights Number since 2001: 11

Principal airports: Szymany; Warzawa; Kraków.

Suspicious destinations and origins: Kabul, Afghanistan; Rabat, Morocco (Guantánamo, after a stopover in Rabat)

Stopovers of planes transited through Poland and used in other occasion or extraordinary renditions:

N379 used for the extraordinary renditions of Al Rawi and El Banna; Benyam Mohammed; Kassim Britel [and the expulsion of Agiza and El-Zari]: 6 stopovers in Poland.

N313P used for the extraordinary renditions of El-Masri and Benyamin Mohamed: 1 stopover in Poland.”

Referring to the “extensive exchange of views with few managers of the Szymany airport and journalist investigating events, which took place in the airport” the document stated that the following information had been gathered:

“• in 2002, two Gulfstream jets, in 2003, four Gulfstream jets and on 22 September 2003, one Boeing 737 with civilian registration numbers transferred through the airport. These planes were treated as military planes and have not been a subject to customs clearance. The military character of the flight was determined by the Border Guards and the relevant procedure was followed by the airport staff;

• Orders were given directly by the Border Guards about the arrivals of the aircraft referred to, emphasising that the airport authorities should not approach the aircraft and that military staff and services alone were to handle those aircraft and only to complete the technical arrangements after the landing;

• Landing fees of the planes were paid in cash and overpriced - between EUR 2000 and EUR 4000;

• One or two vehicles would wait for the arrival of Gulfstream aircraft. The vehicles had military registration numbers starting with “H”, which are associated with the intelligence training base in nearby Stare Kiejkuty. In one case a medical emergency vehicle, belonging to either the police academy or the military base, was involved. One airport staff member reported once following the vehicles and seeing them heading towards the intelligence training centre at Stare Kiejkuty;

• According to the Border Guards the Boeing crew of 7 people was joined at Szymany airport by 5 passengers, who declared themselves as businessmen. All 12 people (crew and passengers) where American citizens.”

266. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.

2. The 2007 European Parliament Resolution

267. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) (“the 2007 EP Resolution”). Its general part, it reads, in so far as relevant, as follows:

“The European Parliament,

...

J. whereas on 6 September 2006, US President George W. Bush confirmed that the Central Intelligence Agency (CIA) was operating a secret detention programme outside the United States,

K. whereas President George W. Bush said that the vital information derived from the extraordinary rendition and secret detention programme had been shared with other countries and that the programme would continue, which raises the strong possibility that some European countries may have received, knowingly or unknowingly, information obtained under torture,

L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter, ...”

268. The passages regarding the EU member states reads:

9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;

...

13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;

...

39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;

...

43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);

44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;

...

48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;”

269. In respect of Poland, the resolution states:

“POLAND

[The European Parliament]

167. Deplores the glaring lack of cooperation by the Polish Government with the Temporary Committee, in particular when receiving the Temporary Committee delegation at an inappropriate level; deeply regrets that all those representatives of the Polish Government and Parliament who were invited to do so, declined to meet the Temporary Committee;

168. Believes that this attitude reflects an overall rejection on the part of the Polish Government of the Temporary Committee and its objective to examine allegations and establish facts;

169. Regrets that no special inquiry committee has been established and that the Polish Parliament has conducted no independent investigation;

170. Recalls that on 21 December 2005, the Special Services Committee held a private meeting with the Minister Coordinator of Special Services and the heads of both intelligence services; emphasises that the meeting was conducted speedily and in secret, in the absence of any hearing or testimony and subject to no scrutiny; stresses that such an investigation cannot be defined as independent and regrets that the committee released no documentation, save for a single final statement in this regard;

171. Notes the 11 stopovers made by CIA-operated aircraft at Polish airports and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Poland of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri and Binyam Mohammed and for the expulsion of Ahmed Agiza and Mohammed El Zar;

172. Regrets that following the hearings carried out by the Temporary Committee delegation in Poland, there was confusion and contradictory statements were made about the flight plans for those CIA flights, which were first said not to have been retained, then said probably to have been archived at the airport, and finally claimed to have been sent by the Polish Government to the Council of Europe; acknowledges that in November 2006, the Szymany Airport’s management provided the Temporary Committee with partial information on flight plans;

...

177. Acknowledges that shortly thereafter and in accordance with President George W. Bush’s statements on 6 September 2006, a list of the 14 detainees who had been transferred from a secret detention facility to Guantánamo was published; notes that 7 of the 14 detainees had been referred to in a report by ABC News, which was published 9 months previously on 5 December 2005 but withdrawn shortly thereafter from ABC’s webpage, listing the names of twelve top Al Qaeda suspects held in Poland;

178. Encourages the Polish Parliament to establish a proper inquiry committee, independent of the government and capable of carrying out serious and thorough investigations;

179. Regrets that Polish human rights NGOs and investigative journalists have faced a lack of cooperation from the government and refusals to divulge information;

180. Takes note of the statements made by the highest representatives of the Polish authorities that no secret detention centres were based in Poland; considers, however, that in the light of the above circumstantial evidence, it is not possible to acknowledge or deny that secret detention centres were based in Poland;

181. Notes with concern that the official reply of 10 March 2006 from Under-Secretary of State Witold Waszczykowski to the Secretary-General of the Council of Europe, Terry Davis, indicates the existence of secret cooperation agreements, initialled by the two countries’ secret services themselves, which exclude the activities of foreign secret services from the jurisdiction of Polish judicial bodies.”

3. The 2011 European Parliament Resolution

270. On 9 June 2011 the European Parliament adopted its resolution on Guantánamo: imminent death penalty decision (doc. B70375/2011) relating to Mr Al Nashiri.

The European Parliament, while recognising that the applicant was accused of serious crimes, expressed its deep concern that the US authorities in his case had violated international law “for the last 9 years”. It called on the US Convening Authority not to apply the death penalty on him, “on the grounds that the military commission trials do not meet the standards internationally required for the application of the death sentence”.

The European Parliament further appealed to “the particular responsibility of the Polish and Romanian Governments to make thoroughly inquiries into all indications relating to secret prisons and cases of extraordinary rendition on Polish soil and to insist with the US Government that the death penalty should on no account be applied to Mr Al Nashiri”.

4. The Flautre Report and the 2012 European Parliament Resolution

271. On 11 September 2012 the European Union Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs (“the Flautre Report”) highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came 5 years after the Fava Inquiry (see paragraphs 260-266 above), highlighted new abuses - notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries - and made recommendations to ensure proper accountability. The report included the Committee on Foreign Affairs’ opinion and recommendations.

Following the examination of the Report the European Union Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee report (2012/2033(INI)) (“the 2012 EP Resolution”).

272. Paragraph 13 of the 2012 EP Resolution, which refers to the criminal investigation in Poland, reads:

“[The European Parliament,]

“13. Encourages Poland to persevere in its ongoing criminal investigation into secret detention, but deplores the lack of official communication on the scope, conduct and state of play of the investigation; calls on the Polish authorities to conduct a rigorous inquiry with due transparency, allowing for the effective participation of victims and their lawyers;”

273. Paragraph 45, which concerns the applicant, reads:

“45. Is particularly concerned by the procedure conducted by a US military commission in respect of Abd al-Rahim al-Nashiri, who could be sentenced to death if convicted; calls on the US authorities to rule out the possibility of imposing the death penalty on Mr al-Nashiri and reiterates its long-standing opposition to the death penalty in all cases and under all circumstances; notes that Mr al-Nashiri’s case has been before the European Court of Human Rights since 6 May 2011; calls on the authorities of any country in which Mr al-Nashiri was held to use all available means to ensure that he is not subjected to the death penalty; urges the VP/HR to raise the case of Mr al-Nashiri with the US as a matter of priority, in application of the EU Guidelines on the Death Penalty;”

5. The 2013 European Parliament Resolution

274. Having regard to the lack of response to the recommendations made by the European Union Parliament the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) (“the 2013 EP Resolution”).

Paragraph 6, which concerns Poland, reads:

“[The European Parliament,]

6. Asks Poland to continue its investigation on a basis of greater transparency, in particular by offering evidence of concrete actions taken, allowing victims’ representatives to meaningfully represent their clients by giving them their rightful access to all relevant classified material, and acting on the material that has been collected; calls on the Polish authorities to prosecute any implicated state actor; urges the Polish General Prosecutor, as a matter of urgency, to review the application of Walid Bin Attash and come to a decision; calls on Poland to cooperate in full with the ECtHR regarding the cases of Al Nashiri v Poland and Abu Zubaydah v Poland;”

C. The 2007 ICRC Report

275. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism (see also paragraph 101 above). It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.

After President Bush publicly confirmed that 14 terrorist suspects - High-Value Detainees, including the applicant, detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see also paragraph 69 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006 (see also paragraphs 101-102 above). On this basis, its report of February 2007 - the 2007 ICRC Report - was drafted, concerning the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.

The 2007 ICRC report was (and formally remains) classified as “strictly confidential” but it was leaked to the public domain. It was published by the New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU’s site (www.aclu.org).

276. The rendition programme as applied to the detainees was, in so far as relevant, related as follows:

“ 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM

... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or m combination, in addition to the deprivation of other basic material requirements.

...

2. ARREST AND TRANSFER

... The fourteen were arrested in four different countries [Thailand, Pakistan, Somali and the United Arab Emirates]. In each case, they were reportedly arrested by the national police or security forces of the country in which they were arrested.

In some cases US agents were present at the time of arrest. All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country ...(reportedly Afghanistan, see below) and from there on to other countries. Interrogation in the country of arrest was conducted by US agents in nearly all cases. In two cases, however, detainees reported having been interrogated by the national authorities, either alone or jointly with US agents:...Hussein Abdul Nashiri was allegedly interrogated for the first month after arrest by Dubai agents.

During their subsequent detention, outlined below, detainees sometimes reported the presence of non-US personnel (believed to be personnel of the country in which they were held), even though the overall control of the facility appeared to remain under the control of the US authorities.

Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006.

The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.

The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.

In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.

The ICRC was informed by the US authorities that the practice of transfers was linked specifically to issues that included national security and logistics, as opposed to being an integral part of the program, for example to maintain compliance. However, in practice, these transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. This report will not enter into conjecture by referring to possible countries or locations of places of detention beyond the first and second countries of detention, which are named, and will refer, where necessary, to subsequent places of detention by their position in the sequence for the detainee concerned (e.g.. third place of detention, fourth place of detention). The ICRC is confident that the concerned authorities will be able to identify from their records which place of detention is being referred to and the relevant period of detention.

...

1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION

[the relevant passages are rendered in paragraph 102 above]

1.3. OTHER METHODS OF ILL-TREATMENT