Case: Al Nashiri v. Poland
Judgement date: 24 July 2014
Topic: Death penalty abolition
Aspect: Risk of being sentenced to death

Summary of the facts:
This case concerned allegations of torture, ill-treatment and secret detention of a Saudi Arabian national of Yemeni descent – who is currently detained in the United States Guantanamo Bay Naval Base in Cuba – suspected of terrorist acts. The applicant submitted that he had been held at a Central Intelligence Agency (CIA) “black site” in Poland. He invoked in particular Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, and Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention as regards his transfer from Poland, alleging that there had been substantial grounds for believing that there was a real and serious risk that he would be subjected to the death penalty.

Summary of the Court's findings:
The Court held that there had been a violation by Poland of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention by having enabled the CIA to transfer the applicant to the jurisdiction of the military commission and thus exposing him to a foreseeable serious risk that he could be subjected to the death penalty following his trial. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further decided that Poland, in order to comply with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention, was required to seek to remove, as soon as possible, the risk that the applicant could be subjected to the death penalty by seeking assurances from the United States authorities that such penalty would not be imposed on him. The Court also found in this case that Poland had failed to comply with its obligation under Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation) of the Convention. It further held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects, a violation of Article 5 (right to liberty and security), a violation of Article 8 (right to respect for private and family life), a violation of Article 13 (right to an effective remedy) and a violation of Article 6 § 1 (right to a fair trial) of the Convention.

The facts:
I. EVIDENCE BEFORE THE COURT
II. BACKGROUND TO THE CASE
A. Terrorist attacks of which the applicant has been suspected
1. USS Cole bombing in 2000
2. MV Limburg bombing
B. The so-called “High-Value Detainees Programme”
1. The establishment of the HVD Programme
2. Enhanced Interrogation Techniques
3. Standard procedures and treatment of “High Value Detainees” in CIA custody (combined use of interrogation techniques)
4. Conditions of detention at CIA detention facilities
5. Closure of the HVD Programme
C. Role of Jeppesen Company
D. Military Commissions
1. Military Order of 13 November 2001
2. Military Commission Order no. 1
3. The 2006 Military Commissions Act and the 2009 Military Commissions Act
E. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate
III. THE PARTICULAR CIRCUMSTANCES OF THE CASE
A. The applicant’s capture, transfer to the CIA’s custody and initial detention (from the end of October to 4 December 2002)
B. Transfer to Poland and detention in the “black site” in Stare Kiejkuty (from 4/5 December 2002 to 6 June 2003)
1. Transfer (4-5 December 2002)
2. Detention and ill-treatment (5 December 2002- 6 June 2003)
C. Transfer from Poland on 6 June 2003
D. The applicant’s further transfers during CIA custody (from 6 June 2003 to 6 September 2006)
E. The applicant’s detention in Guantánamo Bay and his trial before the Military Commission (from 6 September 2006 to present)
1. Hearing before the Combatant Status Review Tribunal
2. Trial before the military commission
F. Parliamentary inquiry in Poland
1. Parliamentary inquiry in Poland
2. Views regarding the inquiry expressed by international organisations
(a) Council of Europe
(b) European Parliament
G. Criminal investigation in Poland
1. Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Husayn (Abu Zubaydah) v. Poland
2. Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Abu Zubaydah v. Poland and certain materials available in the public domain
3. Views regarding the investigation expressed by international organisations
(a) United Nations
(b) Amnesty International
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
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
2. Statement of the International Rehabilitation Council for Torture
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)
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
2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002
3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002
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
5. Amnesty International Report 2003 – United States of America, 28 May 2003
6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003
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
8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003
9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004
10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005
11. Human Rights Watch – List of Ghost Prisoners Possibly in CIA Custody of 30 November 2005
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
D. Media reports and articles
1. International media
2. Polish media
3. Interview with Mr A. Kwaśniewski, former President of Poland
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
2. Parliamentary Assembly’s inquiry – the Marty Inquiry
(a) The 2006 Marty Report
(b) The 2007 Marty Report
(c) The 2011 Marty Report
B. European Parliament
1. The Fava Inquiry
2. The 2007 European Parliament Resolution
3. The 2011 European Parliament Resolution
4. The Flautre Report and the 2012 European Parliament Resolution
5. The 2013 European Parliament Resolution
C. The 2007 ICRC Report
D. United Nations Organisation
1. The 2010 UN Joint Study
2. The 2010 UN Human Rights Committee Observations
E. The CHRGJ Report
VIII. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT
A. Polish Border Guard’s letter of 23 July 2010
B. TDIP transcript of “Exchange of views with [M.P.], former director of Szczytno/Szymany airport in Poland”
C. Senator Pinior’s affidavit submitted to the Court in the case of Husayn (Abu Zubaydah)
IX. EXTRACTS FROM TESTIMONIES OF EXPERTS AND WITNESS HEARD BY THE COURT
A. Mr Fava
B. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah ”
C. Senator Marty
D. Mr J.G.S.
E. Senator Pinior

Relevant law and the Court's assessment:
IV. RELEVANT DOMESTIC LAW
A. Criminal Code
1. Territorial jurisdiction
2. Offence of abuse of power
3. Statute of limitation
4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation)
B. Code of Criminal Procedure
1. Prosecution of offences
2. Classified materials
C. Laws on classified information and related ordinance
1. The laws on classified information
(a) Situation until 2 January 2011 – “the 1999 Act”
(b) Situation as from 2 January 2011 – “the 2010 Act”
2. The 2012 Ordinance
D. Law on intelligence agencies
V. RELEVANT INTERNATIONAL LAW
A. Vienna Convention on the Law of Treaties
Article 26 “ Pacta sunt servanda ”
Article 27 Internal law and observance of treaties
B. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts
Article 7 Excess of authority or contravention of instructions
Article 14 Extension in time of the breach of an international obligation
Article 15 Breach consisting of a composite act
Article 16 Aid or assistance in the commission of an internationally wrongful act
C. International Covenant on Civil and Political Rights
D. The United Nations Torture Convention
E. UN General Assembly Resolution 60/147
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ arguments
1. The Government
2. The applicant
B. The Court’s assessment
II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Applicable principles deriving from the Court’s case-law
(a) General principles
(b) Cases where national security or confidentiality concerns are involved
2. Application of the above principles to the present case
III. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE
A. The parties’ positions on the facts and evidence
1. The Government
2. The applicant
B. Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects
C. The Court’s conclusion on the lack of dispute as to the facts and evidence
D. The Court’s assessment of the facts and evidence
1. Applicable principles deriving from the Court’s case-law
2. Preliminary considerations concerning the assessment of the facts and evidence in the present case
3. Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory
(a) Whether the applicant’s allegations concerning the events preceding his alleged detention in Poland (capture and initial detention from the end of October to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court
(b) Whether the applicant’s allegations concerning his transfer to Poland, secret detention at the “black site” in Stare Kiejkuty and transfer from Poland to other CIA secret detention facilities elsewhere (4/5 December 2002 – 6 June 2003) were proved before the Court
4. Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme
(a) Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities
(b) Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA
(c) The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials
(d) Poland’s lack of cooperation with the international inquiry bodies
(e) Informal transatlantic meeting
(f) Relations of cooperation between the Polish intelligence and the CIA
(g) Circumstances surrounding detainees transfer and reception at the black site
(h) Other elements
(i) Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody
5. Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme
IV. RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME
A. The parties’ submissions
1. The Government
2. The applicant
B. Third-party intervener – AI/ICJ
C. Applicable general principles deriving from the Court’s case-law
1. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory
2. As regards the State’s responsibility for an applicant’s removal from its territory
3. Conclusion
V. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
A. Procedural aspect of Article 3
1. The parties’ submissions
(a) The Government
(b) The applicant
2. The third-party interveners
(a) Helsinki Foundation for Human Rights
(b) The UN Special Rapporteur
3. The Court’s assessment
(a) Admissibility
(b) Merits
B. Substantive aspect of Article 3
1. The parties’ submissions
(a) The Government
(b) The applicant
2. The Court’s assessment
(a) Admissibility
(b) Merits
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. The parties’ submissions
1 The Government
2. The applicant
B. The Court’s assessment
1. Admissibility
2. Merits
(a) Applicable general principles deriving from the Court’s case-law
(b) Application of the above principles to the present case
VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Admissibility
2. Merits
VIII. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
A. The parties’ submissions
B. The Court’s assessment
1. Admissibility
2. Merits
(a) Applicable general principles deriving from the Court’s case-law
(b) Application of the above principles to the present case
IX. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Admissibility
2. Merits
(a) Applicable principles deriving from the Court’s case-law
(b) Application of the above principles to the present case
X. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 6 TO THE CONVENTION
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Admissibility
2. Merits
(a) Applicable general principles deriving from the Court’s case-law
(b) Application of the above principles to the present case
XI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
XII. APPLICATION OF ARTICLE 46 OF THE CONVENTION
XIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
B. Costs and expenses
C. Default interest