TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Instead, this was nothing short of collusion in the violation of the most basic rights of the applicant.
AP2 (Applicant): Under Article V, Mr. Elmasri was the victim
AP2 (Applicant): of a joint US-Macedonian secret intelligence operation, resulting in his continued disappearance for a period of 149 days.
AP2 (Applicant): He was disappeared for the sole purpose of interrogation in a location and under circumstances that placed him in a virtual legal black hole.
AP2 (Applicant): Under this court's law, disappearances are a most grave violation of Article V and a complete negation of its procedural guarantees.
AP2 (Applicant): The applicant's secret detention in both Macedonia and Afghanistan violated every single Article V guarantee.
AP2 (Applicant): It was not carried out in accordance with a procedure prescribed by law, and it was not lawful.
AP2 (Applicant): Mr. Elmasri was never informed of the proper reasons
AP2 (Applicant): for his detention and never brought before a judge of any country.
AP2 (Applicant): He was never given an opportunity to challenge his detention, as he was held entirely incommunicado.
AP2 (Applicant): He was not once during this entire period allowed to contact his family, a lawyer, or a German consular official.
AP2 (Applicant): Macedonia acted in collusion with US intelligence in disappearing the applicant in one continuous and joint operation.
AP2 (Applicant): It is thus directly responsible for violations of Mr. Elmasri's Article V rights
AP2 (Applicant): for the entire period of his secret detention at Skopje airport and in Afghanistan.
AP2 (Applicant): The rendition simply would not have happened had the respondent government chosen to refuse the US request to illegally detain and then hand over the applicant.
AP2 (Applicant): The respondent had a separate duty under Article III to conduct a prompt, effective, and thorough criminal investigation into the applicant's arguable claims of Article III violations.
AP2 (Applicant): And a similar duty arises with respect to severe violations of Article V.
AP2 (Applicant): The Macedonia authorities have failed dismally in their duty to investigate.
AP2 (Applicant): They declined to initiate an ex officio investigation, even as Mr. Elmasri's claim received
AP2 (Applicant): major international publicity, and even after the Munich prosecutor twice provided information evidencing criminal activity in Macedonia.
AP2 (Applicant): And they failed to do so after the applicant filed a formal criminal complaint with the Skopje prosecutor.
AP2 (Applicant): The list of investigative failures is too long to describe here.
AP2 (Applicant): There is a full analysis in our submissions.
AP2 (Applicant): But the most blatant ones are the following.
AP2 (Applicant): The investigation was not independent.
AP2 (Applicant): Throughout these years, the Macedonian prosecutors have relied exclusively on versions of events provided by the Macedonian Ministry of Interior, the same institution that oversees the Macedonian intelligence service, the UBEKA, that Mr. Elmasri had identified as responsible
AP2 (Applicant): for his disappearance.
AP2 (Applicant): This, even though this court had held as early as October 2006 in at least two cases against Macedonia, Jasar and Jeladinov, that internal departments of the Ministry of Interior, quote, lacked the necessary independence to carry out investigations into abuses by ministry personnel.
AP2 (Applicant): The investigation also not thorough, effective, or professional.
AP2 (Applicant): The national prosecutors continue to blindly follow the version of events of the Ministry of Interior, even as its credibility was thoroughly undermined over the years.
AP2 (Applicant): To highlight just one example, the prosecutors never tried to find the real purpose of the N313P flight.
AP2 (Applicant): The treatment of Mr. Elmasri by the Macedonian authorities
AP2 (Applicant): under this heading is as lacking in humanity as the Russian military court's treatment of the Katyn massacre relatives in the recent Janowiec case, where the court found that the callous disregard for the applicant's concerns and deliberate obfuscation of the circumstances of the massacre amounted to inhuman and degrading treatment of the victim's Polish relatives.
AP2 (Applicant): In this case, similar treatment was reserved for the victim himself, constituting a separate count of inhuman and degrading treatment under Article 3.
AP2 (Applicant): Finally, I'm almost done, Mr. President.
AP2 (Applicant): Finally, Macedonia is responsible for violating Mr. Elmasri's right to respect for his private and family
AP2 (Applicant): life under Article 8, his right to a remedy under Article 13.
AP2 (Applicant): And by its deliberate obfuscation of what was done to him for eight long years, it has also violated his right to truth and also the general public's right to truth under the convention.
AP2 (Applicant): Honorable judges, not too long ago, on Macedonia's side of the Iron Curtain, people were being routinely disappeared of the face of the earth, never to be seen again.
AP2 (Applicant): By joining the Council of Europe and becoming a party to this convention, Macedonia made, in effect, a promise of never again allowing such things to happen with impunity.
AP2 (Applicant): For five months between January and May 2008, and then eight years of denial and injustice, that promise was badly broken.
AP2 (Applicant): The Macedonian government let down Khaled Elmasri, an innocent person who had sought refuge in this continent from a brutal civil war at home.
AP2 (Applicant): At the same time, the government betrayed its commitment to that communal, profound belief, to which the preamble to the convention refers, in fundamental freedoms, which are the foundation of justice and peace in the world, even in a world having to deal with the scourge of international terrorism.
AP2 (Applicant): This court represents the best and perhaps last hope for restoring some of that faith to Mr. Elmasri
AP2 (Applicant): and the European citizens at large.
Nicolas Bratza (JudgeP): Thank you very much, Mr. Pavley.
Nicolas Bratza (JudgeP): We have then, therefore, come to an end of the first round of submissions, and I would like to ask at this stage the judges whether they wish to put any questions to the parties.
Nicolas Bratza (JudgeP): Judge Lorenzen, please.
Peer Lorenzen (Judge): Thank you very much. I have just one question to the applicant.
Peer Lorenzen (Judge): My question is the following.
Peer Lorenzen (Judge): Did the applicant, immediately after his return to Germany in late May, I think it was the 29th of May 2004, undergo a medical examination?
Peer Lorenzen (Judge): If not, and I don't think we have information that it happened, what were the reasons for not doing so?
Nicolas Bratza (JudgeP): Thank you very much, Judge Power-Forde.
Ann Power-Forde (Judge): Following on Judge Lorenzen's question, this question is also addressed to the applicant in terms of the high standard of proof that's required before a violation of Article 3 can be found.
Ann Power-Forde (Judge): And my question concerns exclusively the allegations of physical ill treatment, assault, sodomy.
Ann Power-Forde (Judge): It's not related to the global complaints that are made in relation to Article 3.
Ann Power-Forde (Judge): And having regard to the evidence that's there, the forensic and the medical evidence that's available, I would like to hear the applicant on whether that standard of proof beyond reasonable doubt has been met, purely in relation to the allegations of physical ill treatment.
Ann Power-Forde (Judge): And I would also like to have the applicant's submissions, if any, on whether the circumstances of this case would require that the onus shift to the respondent state on the basis of the legal principle laid down in Tomasi.
Ann Power-Forde (Judge): And if it should revert, then why?
Ann Power-Forde (Judge): And of course, the state is invited, if necessary, to comment on the second limb of that question.
Nicolas Bratza (JudgeP): Any further questions?
Nicolas Bratza (JudgeP): Yes, please, Judge Vajić.
Nina Vajić (Judge): Thank you very much, President.
Nina Vajić (Judge): I have a question for the applicant.
Nina Vajić (Judge): I'm sorry.
Nina Vajić (Judge): And in fact, in view of the arguments given in the written submissions on page 47 in reply to question 10 put by the court, could you please elaborate on the reasons for which the applicant did not submit the witness statement to the national prosecution authorities?
Nina Vajić (Judge): And in particular, on two points that you raised there.
Nina Vajić (Judge): First, why do you state that that statement, the witness statement, does not contain any new facts which should first have been presented to the national authorities?
Nina Vajić (Judge): And second, to elaborate on the argument that this statement was given on condition to be used only before this court, in the applicant's view in such circumstances, would it be possible for the court to use this statement?
Nina Vajić (Judge): Thank you.
Nicolas Bratza (JudgeP): Are there any further questions?
Nicolas Bratza (JudgeP): It doesn't seem to be the case.
Nicolas Bratza (JudgeP): Then I propose to adjourn the hearing for 20 minutes.
Nicolas Bratza (JudgeP): And we will then return to have replies to the questions and any additional observations the parties may wish to make.
Nicolas Bratza (JudgeP): Hearing is adjourned.
Nicolas Bratza (JudgeP): So I give the floor then to Mr. Bogdanov again.
Nicolas Bratza (JudgeP): Mr. Bogdanov, please.
GR1 (Government): Well, I'll be very brief in my response.
GR1 (Government): At the outset, I would like to reiterate the government has demonstrated to this court that the case is inadmissible.
GR1 (Government): And on the contrary, the applicant has not presented a single argument in front of this court that he satisfied the admissibility criteria.
GR1 (Government): There are only two issues which were raised by the applicant's representatives in their speech to which the government shall respond.
GR1 (Government): The first one is the purported lack of evidence that the applicant left the country through the Bladze border in Macedonia.
GR1 (Government): The government would like to note that, contrary to the applicant's submissions, this fact is corroborated by material evidence which is submitted to this court.
GR1 (Government): And attached to the files of the court.
GR1 (Government): Secondly, I would like also briefly to reply regarding the recent Polish judgment which was seated by the applicants in their submissions and regarding the substantive limb of Article 3.
GR1 (Government): The government recalls that Article 3 has previously been relied on a number of cases before the court in which the applicants complained that they had suffered inhuman undergrading treatment on the part of the domestic authorities in the context of the death or disappearance of their next of kin.
GR1 (Government): The claims found their basis on the state of uncertainty the relatives have had to endure owing to their inability to find out the fate of their next of kin.
GR1 (Government): According to the already well-established case law, the manner in which the applicants' inquiries are responded by the authorities should be prerequisite in finding flagrant, continuous, and callous disregard for the applicants' concerns and anxieties amounting to inhuman treatment within the meaning of Article 3.
GR1 (Government): The diligence on the part of the applicant towards the investigation again remains essential.
GR1 (Government): Consequently, when there is no active stance by the applicant towards the investigation and the authorities, and no requests or inquiries whatsoever are made by him, he may not claim the local standing in this respect, since there won't be any authorities responses that the court may examine from the standpoint of Article 3.
GR1 (Government): That's all that I have.
GR1 (Government): Thank you, Court.
GR1 (Government): Thank you, Mr. Chairman.
GR1 (Government): Thank you guys for being with us today.
GR1 (Government): Thank you for being our audience for us tonight.
GR1 (Government): Thank you very much for being with us.
GR1 (Government): Go, go, go.
GR1 (Government): for it.
Nicolas Bratza (JudgeP): Thank you, Mr Bogdanov.
Nicolas Bratza (JudgeP): Can I put one question to you?
Nicolas Bratza (JudgeP): In your submissions in the first round, you addressed simply the question of admissibility.
Nicolas Bratza (JudgeP): Do I take it that so far as the merits are concerned, you stand by your written pleadings?
Nicolas Bratza (JudgeP): Is that right?
GR1 (Government): Yes, regarding the merits, we, our position is already submitted with the written observations, so there are no changes and we would like to reaffirm it at this point.
Nicolas Bratza (JudgeP): Thank you very much. Mr Goldson, please.
AP1 (Applicant): With the court's permission, I would address the questions from Judges Powerford and Lawrenson and a couple of questions related to admissibility that the government has raised.
AP1 (Applicant): And then Mr. Pavley will take the question by Judge Viach
AP1 (Applicant): and some further matters that have been raised by the government.
AP1 (Applicant): With respect just to the admissibility questions, one just on the point that was just raised earlier about the purported delay and negligence of the applicant in bringing a formal complaint to the Macedonian authorities and the suggestion that the applicant was doing nothing in the interim, we would submit that in a case of this complexity, crimes of this nature in which more than one state is involved, and particularly given that the nature of the crimes themselves is secret and governments have gone to a great length to maintain their secrecy as to what happened and to deny and to stonewall the revelation of facts, in that context, four and a half years, we would submit, is not a long period of time for the applicant to assemble the necessary facts to provide to criminal investigation authorities in Macedonia.
AP1 (Applicant): And I should note that throughout this time, the applicant was himself and through his legal representatives working diligently to pursue investigations.
AP1 (Applicant): He was in touch with the Munich prosecutor, who made two requests of the Macedonian authorities before 2008, and to which the Court has the very summary and, in our view, inadequate responses the Macedonian authorities gave.
AP1 (Applicant): He was the applicant was assisting the various European investigations by the Council of Europe, the Dick Morty investigation, and the Fava investigation of the European Parliament, as well as the German Bundestag investigation.
AP1 (Applicant): And these were all gradually yielding additional corroborating evidence, which he was ultimately able to bring to bear before the Macedonian authorities.
AP1 (Applicant): In addition, I should note that in the middle of 2008, shortly before he filed a formal criminal complaint with the Macedonian authorities, he received from Macedonia a response to a freedom of information request that had been filed.
AP1 (Applicant): And at that time, in June of 2008, for the first time, the Macedonian government confirmed as genuine the flight data, which the Morty report had earlier published.
AP1 (Applicant): So the flight data was known, but this represented in the response to the freedom of information request in mid-2008, shortly before he filed the criminal complaint, this response represented the first formal acknowledgment by the government that those data were genuine and could be relied upon.
AP1 (Applicant): And secondly, to our knowledge, at that time, that is in June of 2008, the response to FOIA, the freedom of information requests, the government for the first time disclosed that the plane at issue, the CIA rendition plane, arrived in Skopje with no passengers and departed Skopje with one passenger.
AP1 (Applicant): I believe that that was the first time that that was made clear by the Macedonian government's information.
AP1 (Applicant): So information was accumulating throughout this 4 1⁄2 years.
AP1 (Applicant): In addition, in June of 2008, the applicant learned something which was quite material.
AP1 (Applicant): And on the basis of all of that, he then proceeded to file a criminal complaint because he felt that he could satisfy the burden under Macedonian law for doing so.
AP1 (Applicant): I should note as well in this respect, the question was raised, I think, by the government of why the applicant went first to the United States before going to Macedonia.
AP1 (Applicant): And there, I think one very clearly reasonable explanation for that is that when he went to the United States, he filed a civil application, an application or a complaint for civil remedies in the district court in the United States.
AP1 (Applicant): And the burden of proof in civil proceedings in the United States is not what it is for criminal proceedings, of course.
AP1 (Applicant): And so he was able, he felt, to meet the threshold, even though ultimately the courts in the United States were not willing to hear his claims on the merits.
AP1 (Applicant): The applicant felt that he would be able to satisfy the threshold of proof of balance of the probabilities in evidence or preponderance of the evidence rather than proof beyond a reasonable doubt as would be necessary in a criminal proceeding.
AP1 (Applicant): And it took more time to assemble the evidence that would be necessary to surmount a reasonable doubt barrier in a criminal proceeding.
AP1 (Applicant): So that, I think, gives some explanation of why a civil proceeding in the United States proceeded first, and after some time and additional evidence was assembled, he filed a complaint in Macedonia in the fall of 2008 in criminal proceedings.
AP1 (Applicant): And just on that, we, in making those representations, we in no way suggest that the government of Macedonia did not we in no way suggest that the government of Macedonia needed to wait for him to file his criminal complaint.
AP1 (Applicant): The government had an independent obligation from the very start when these facts and allegations emerged to do its own investigation.
AP1 (Applicant): It simply did not do so, as my colleague Mr. Pavley has responded.
AP1 (Applicant): But I do think in the context of this case, 4 and a half years is not long.
AP1 (Applicant): And I think the applicant did his very, very best to prove his case and bring it to the Macedonian authorities in a timely fashion.
AP1 (Applicant): If I can just say, then, with respect to the questions that were raised about the medical exam and the threshold of burden of proof specifically on the questions of physical treatment and assault under Article III, in fact, shortly after his return to Germany, the applicant did prove his case.
Nicolas Bratza (JudgeP): Mr. Goldson, could you speak a little bit less fast, please?
AP1 (Applicant): Of course.
AP1 (Applicant): Shortly after his return to Germany, the applicant did undergo a medical examination, and that is in — that material is not in the court record.
AP1 (Applicant): It is in material that was submitted to the FAWA inquiry of the European Parliament by the German prosecutor.
AP1 (Applicant): We can certainly make it available to the Court if you'd wish, but it's not there because it's not very relevant in our view.
AP1 (Applicant): It concludes that there's no evidence, and one would not expect there would be, of physical injury as of that late date.
AP1 (Applicant): One must recall that the — according to what the applicant says, all the physical — almost all the physical assault that he encountered took place at the time that he was transferred from Macedonia to the CIA in January at Skopje Airport when he was subjected to the capture shock techniques, and shortly after his arrival in Kabul, Afghanistan, again in late January, early February.
AP1 (Applicant): So by the time of his release, it really would have been four months thereafter, and it would be surprising, indeed, if there were indicia of physical assault that still remained visible that late in time, particularly when one takes account of the fact that has been well documented in other proceedings, the kinds of treatment which he was subjected by the CIA both on Macedonian territory and once in Kabul were designed precisely, as has been made very clear in other proceedings, not to leave any evidence of physical mistreatment.
AP1 (Applicant): And there were sophisticated methods developed precisely to ensure that that was the case. And I think, you know, in terms of the questions of the burden of proof that
AP1 (Applicant): we would submit, that the Tamasi reversal of the burden does apply, because it is conceded by the government as well that he was in custody for some period of time.
AP1 (Applicant): We dispute for how long, but we would argue that, yes, once in custody, the burden of proof reverses, and the government is under an explanation to offer an explanation of his injuries, which it is unable to do. But we would also submit that even if the
AP1 (Applicant): government is under an explanation, that there was no reversal in this case, that the applicant is able to sustain his burden of proof as required by the Court's prior jurisprudence, proof beyond a reasonable doubt, which the Court has interpreted to mean the coexistence of sufficiently strong, clear, and concordant inferences or of a similar unrebutted presumption of fact. And we believe that the applicant
AP1 (Applicant): has more than sustained that burden in this case. Just very briefly, to recall,
AP1 (Applicant): you have his consistent and very detailed testimony of the kinds of physical abuse to which he was subjected, both at the airport in Skopje and upon shortly after arrival in Kabul. You have that repeated again and again in numerous
AP1 (Applicant): testimonies by him. You have the fact that his testimony has been corroborated
AP1 (Applicant): numerous times by others who have been the victims of similar techniques by the CIA and or cooperating governments in renditions to other countries, as has been disclosed in numerous other proceedings, as has been found by two United Nations treaty bodies, et cetera. You also have the isotopic hair analysis, which certainly
AP1 (Applicant): corroborates the fact that he was deprived of food for long periods of time, and we would submit is also additional corroboration for the abusive treatment which he underwent in Afghanistan to be force-fed. And frankly, every inquiry beyond
AP1 (Applicant): this one that has engaged and looked at this case has found that his allegations of physical abuse are true. That is, the Bundestag inquiry, the Fava inquiry of the
AP1 (Applicant): European Parliament, the Dick Markey inquiry. So we would submit that, yes, the burden
AP1 (Applicant): shifts, but that even if it doesn't, the applicant has sustained his burden in this case. And if I can just briefly, I apologize, Mr. President, but just briefly
AP1 (Applicant): respond to the question that was raised by the government just now about evidence regarding the applicant's departure from Macedonia for Kosovo. The Markey report,
AP1 (Applicant): which is in the record, found that, in fact, the — there was no record in the applicant's passport of a stamp having been given to indicate his departure, and that the head of the Ubeka answered the question, and that's the reason why I'm asking you to submit that the head of the Ubeka answered to the Markey inquiry at that time that normally there should be a stamp in this passport as you cross the border out of Macedonia, but I can't be sure. So we would submit, frankly, that this is yet another instance
AP1 (Applicant): in which the effort by the government to offer evidence in support of their version of events is simply without merit. With that, I will ask Mr. Pavley to respond
Nicolas Bratza (JudgeP): Thank you, Mr Goldson. Mr Pavli, please.
AP2 (Applicant): So I'd like to start by responding to the question posed by Judge Vajic.
AP2 (Applicant): And the question was, why did the applicant submit the statement by the former senior Macedonian official to the national prosecutor?