TrustHLT/LaCour huggingface dataset:
AP3 (Applicant): In cases concerning grave unlawful actions by State agents, documents from criminal investigations may be fundamental to the establishment of facts, and the absence may have the effect of prejudicing the Court's proper examination of the complaint.
AP3 (Applicant): The Court has, in such cases, often drawn inferences from the failure to make disclosure of the investigation file.
AP3 (Applicant): Article 38 of the Convention requires States to furnish all necessary facilities for the Court's examination of the case.
AP3 (Applicant): The Court reiterated that where a State fails to submit information without a satisfactory explanation, this may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligation under the Convention.
AP3 (Applicant): In IANOVIT, it held that the obligation to furnish all necessary facilities for its investigation is a corollary of the undertaking not to hinder the effective exercise of the right of individual application under Article 34 of the Convention.
AP3 (Applicant): It has held that effective exercise of this right may be prevented by a State's failure to assist the Court in conducting an examination of all circumstances relating to the case, including in particular, but not producing evidence by which the Court considers crucial for its task.
AP3 (Applicant): The State's refusal to comply with the Court's production order is consistent with its attempts to avoid any scrutiny that might lead to accountability for its actions and inactions.
AP3 (Applicant): Requests for information have continually been denied on the basis the investigation must maintain its purported independence and stages of confidentiality.
AP3 (Applicant): The application of its blanket confidentiality approach to every aspect of this case, including withholding information from the victim's party to proceedings without explanation, is unattainable in light of the evidence set out here today.
AP3 (Applicant): The consequences for the functioning of the Court where States actively seek to prevent or disrupt proper judicial scrutiny of its actions are serious.
AP3 (Applicant): We submit that this Court should take into account the conduct of the State in failing to disclose the investigation file.
AP3 (Applicant): The State is willfully obstructing this Court from establishing the truth of this case, and the Court should, on the basis draw necessary inference from the failure.
AP3 (Applicant): Unjustified limitation of the access to the case file results with limitation of exercising certain rights by the parties, which have no influence and knowledge about the current actual status of the case.
AP3 (Applicant): It is well established in the case law of this Court that the obligation to conduct the effective investigation includes the obligation to provide the victim with the effective access to the investigation.
AP3 (Applicant): There cannot be an effective investigation where the victim has not been allowed to get meaningful access to the case file.
AP3 (Applicant): Lengthy proceedings, in particular, where the one conducted for more than five years at its in-rem phase and not entering into the in-personam phase cannot be treated as effective remedy for the violation of one's rights and freedom under the Convention.
AP3 (Applicant): The fact that the proceeding is repeatedly and automatically prolonged by General Prosecutor's Office means that the Appealed Prosecution Office, which is in charge of the case, is not forced to act and finish the preparatory proceeding in the reasonable time.
AP3 (Applicant): As a counsel of the victim, I was allowed to get access to the secret part of the case files only twice during the whole proceedings since 2010 when I entered it on behalf of the victim.
AP3 (Applicant): Once I had access to the part of the classified part of the case files for about three hours, as was said a couple of minutes ago.
AP3 (Applicant): Then once more for about 15 minutes to the allegedly classified document, which shouldn't even be treated like one.
AP3 (Applicant): Denying a party access to the case files requires a formal decision in writing of the prosecutor in charge, even though the Appealed Prosecutor Office in Krakow never issued any formal decision.
AP3 (Applicant): Denying access to the case files were multiple obstacles of the factual nature that made such access impossible, such as the illustration from October 2013 mentioned earlier.
AP3 (Applicant): Madam President and the honorary members of the Court, by concluding this submission, I would kindly like to ask not only to help the victims have the right to protect in the effective and just way, and to make clear that prosecutors in charge of the investigation in cases of this importance must run it effectively, professionally, and keeping it independent from all kinds of pressures they might be exposed to right now.
AP3 (Applicant): Mr. Prosecutor Schliewa, my distinguished colleague,
AP3 (Applicant): invoked certain Polish laws which allegedly guarantee him independence from political pressure.
AP3 (Applicant): With all due respect, Poland's constitution and the European Convention on Human Rights guaranteed certain rights to my client.
AP3 (Applicant): I am very sorry to say that, but the Polish government didn't seem to care at the time the crimes against Abu Zubaydah were committed.
AP3 (Applicant): Unfortunately, this hasn't changed much since.
AP3 (Applicant): Thank you very much.
Ineta Ziemele (JudgeP): Thank you, Mr. Jankowski.
Ineta Ziemele (JudgeP): I call the United Nations Special Rapporteur Ben Emmerson, please.
TP1 (ThirdParty): Thank you, Madam President and members of the court, for this unprecedented invitation to address you in person in this most important of cases, and to do so on behalf of the special procedures of the Human Rights Council of the United Nations.
TP1 (ThirdParty): I'm bound and pleased to record my thanks to the Secretary General of the United Nations, who has consented to waive the immunity attaching to my mandate in order to enable me to be here, and given his permission for that purpose.
TP1 (ThirdParty): And Madam President, I'm grateful also to the High Commissioner and her office for the support that they have provided in this regard.
TP1 (ThirdParty): The focus of the remarks that I will convey on behalf of these institutions this morning is on the scope of the right to truth in contemporary international human rights law, and on its relationship within the architecture of the European Convention on Human Rights.
TP1 (ThirdParty): My observations fall into three parts.
TP1 (ThirdParty): I am not, of course, going to comment on the facts of these cases, or the adequacy of the investigations that have or have not been conducted in relation to them.
TP1 (ThirdParty): In the first part of my submissions, I'm going to explain why it is that the United Nations Human Rights Mechanisms consider the right to truth in the context of such gross and systematic human rights violations as are alleged here to be a freestanding right vested not solely in the individual victim and his or her representatives, but also in society at large.
TP1 (ThirdParty): Next, I will move on to say a few words concerning the location of that rather unusual species of right which has both an individual and a collective aspect within the framework of this particular convention.
TP1 (ThirdParty): And in the final part of my submissions, I'm going to update the court on some recent developments, some of them very recent, that have occurred at United Nations level, which are of relevance to the criminal conspiracy hatched and implemented by the Bush-era CIA involving rendition, torture, and secret detention of high-value detainees.
TP1 (ThirdParty): I begin, then, with the scope of the right to truth as it is understood within the United Nations Human Rights System currently.
TP1 (ThirdParty): And I could refer, if I may, parenthetically to the amicus brief that was submitted by the High Commissioner for Human Rights in the El Masri and Macedonia case, where she drew attention to a range of international instruments negotiated at United Nations level, which now recognize the right to truth as having both an individual and a collective dimension.
TP1 (ThirdParty): They include the International Convention for the Protection of All Persons from Enforced Disappearances, the Convention Against Torture, the UN 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 Humanitarian Law, and the updated set of principles for the Protection and Promotion of Human Rights through Actions to Combat Impunity, all of them instruments concerned and concerned solely with gross and systematic violations.
TP1 (ThirdParty): She referred also to the repeated resolutions of the Human Rights Council itself concerning the right to truth, as well as to comparable statements from her own office, from the Committee Against Torture, and from the various of the special procedures mandate holders.
TP1 (ThirdParty): We speak with one voice in our understanding of the scope and nature of this right.
TP1 (ThirdParty): The contours are, we say, now well settled.
TP1 (ThirdParty): And in our view, they are fully reflected in the short statement of principle of the majority of the court in the El-Masri case at paragraph 191.
TP1 (ThirdParty): In that passage, the majority of the court held that the right to truth belongs not just to the individual victim, but also, and I quote, to other victims of similar crimes and the general public who had the right to know what happened.
TP1 (ThirdParty): The court was right to say that in the context of such systematic violations.
TP1 (ThirdParty): My annual report to the Human Rights Council in March of this year, as I foreshadowed in my initial intervention letter in these proceedings, sets out what I've described as framework principles for securing accountability of public officials for gross and systematic human rights violations committed in the context of state counterterrorism initiatives.
TP1 (ThirdParty): They are general principles concerning the right to truth and its relationship with the duty of accountability and the international law imperative to end impunity for systematic human rights violations.
TP1 (ThirdParty): The document is, of course, publicly available.
TP1 (ThirdParty): But I have arranged for it to be formally submitted onto the record in these proceedings.
TP1 (ThirdParty): It is already formally on the record in the linked proceedings brought by Mr. Al-Nashiri
TP1 (ThirdParty): against Romania.
TP1 (ThirdParty): Can I just say a word or two about it before looking at its implications on the right to truth?
TP1 (ThirdParty): The process of seeking the truth about the Bush-era conspiracy has taken a very, very considerable time.
TP1 (ThirdParty): But it has been gathering momentum in the past three years or so.
TP1 (ThirdParty): Independent investigations have reliably established the complicity to a greater or lesser degree of the public officials of a large number of states in the CIA rendition, secret detention, and torture program.
TP1 (ThirdParty): I use the word torture without hesitation or qualification.
TP1 (ThirdParty): We do not recognize the notion of enhanced interrogation as practiced by the CIA as being anything other than torture.
TP1 (ThirdParty): There is now credible evidence to show that CIA black sites were located on the territory of Lithuania, Morocco, Poland, Romania, and Thailand, and that the officials of at least 49 other states within and outside the Council of Europe allowed their airspace or airports to be used for rendition flights.
TP1 (ThirdParty): Despite the emergence of these facts, only one state has so far brought any public official to justice.
TP1 (ThirdParty): On the 4th of November 2009, the Milan criminal tribunal convicted 22 CIA agents in absentia, including the Milan station chief of the CIA, for their role in the abduction of Hassan Mustafa Osama Nasir, a dual Egyptian-Italian national in Milan in February 2003, and his rendition to Cairo, where he was detained for 14 months and repeatedly tortured.
TP1 (ThirdParty): The CIA officials responsible were sentenced by the Italian criminal court to terms of imprisonment of between five, seven, and nine years.
TP1 (ThirdParty): Claims to withhold relevant evidence were eventually rejected by the domestic courts on appeal.
TP1 (ThirdParty): And on the 1st of February of this year, convictions were returned additionally against the Italian officials involved in the abduction and rendition, including an official as senior as the former director of the Italian military intelligence service, who was in February of this year sentenced to 10 years immediate imprisonment.
TP1 (ThirdParty): The prosecutions brought in Italy in the case of Hassan Mustafa Omar are nothing more and nothing less than straightforward applications of the relevant principles of international law that are binding on every member of the United Nations, every member of the Council of Europe, and every signatory to the European Convention on Human Rights.
TP1 (ThirdParty): I cannot but record, therefore, that it must be a matter of obvious regret to all of us that that remains the only instance amongst this entire international criminal conspiracy in which the perpetrators of those crimes have so far been brought to justice.
TP1 (ThirdParty): The experience of the past decade has shown that there are various means by which the right to truth and the principle of accountability can be and have been frustrated, perpetuating effective impunity for the public officials involved in these crimes.
TP1 (ThirdParty): They include de facto immunities, officially authorized destruction of relevant evidence, objective obstruction or interference in independent investigations, unjustified assertions of executive secrecy, dilatoryness, interruptions in investigations, suppression, delayed publication of reports, and so on and so forth.
TP1 (ThirdParty): I should report, as I'm sure the Court is aware, that in March of 2009, the United States, after all, the orchestrator of this conspiracy, through its Senate Select Committee on Intelligence, began a comprehensive investigation into the secret detention and interrogation program chaired by Senator Dianne Feinstein.
TP1 (ThirdParty): Under the published terms of reference, the committee is to inquire whether the CIA implemented the program, how it implemented the program, where and in what circumstances.
TP1 (ThirdParty): It has obvious relevance, the report has obvious relevance to any case, including these ones, which are said to be manifestations of that program because it is the single, sole, and totally comprehensive analysis that has access to all relevant material.
TP1 (ThirdParty): In December 2011, Senator Feinstein announced that the committee had completed the report and it had been adopted by the committee as a whole.
TP1 (ThirdParty): And in April of 2012, she announced that it would, quote, provide a detailed factual description of how interrogation techniques were used, the conditions under which all detainees were held and where, and the intelligence that was or was not gained from the program.
TP1 (ThirdParty): She has since indicated publicly that the majority of the committee believe that the creation of CIA black sites, of the sort that we've described in Europe, and the use of so-called enhanced interrogation techniques were, quote, terrible mistakes, unquote, and that the report would, quote, settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques, such as those detailed in the report.
TP1 (ThirdParty): You will appreciate why I thought it might be of some assistance to this court to have a copy of the Feinstein report.
TP1 (ThirdParty): I called for its publication in my March report to the Human Rights Council, but I've taken the step of writing directly to the United States to ask for an updated timetable for disclosure of the report so that it might be made available to this chamber in its consideration of these proceedings.
TP1 (ThirdParty): And I have asked for a response by close of play on Friday of this week.
TP1 (ThirdParty): I will communicate my response as soon as I receive it.
TP1 (ThirdParty): Tangentially, but perhaps less directly relevantly, is the outstanding report prepared and commissioned from a group of privy councillors in the United Kingdom under the chairmanship of Sir Peter Gibson into the United Kingdom's own involvement in the CIA program.
TP1 (ThirdParty): I wrote a similar letter to the United Kingdom asking for similar updated information on when this report, which has been in the possession of the Prime Minister now for well over a year, is to be published.
TP1 (ThirdParty): And I am glad to be able to tell you that the information I have received is that its publication is now imminent.
TP1 (ThirdParty): That is measurable in a matter of days, not months.
TP1 (ThirdParty): I'm not in a position to give you a precise date.
TP1 (ThirdParty): I hope to be so by Friday of this week.
TP1 (ThirdParty): But that report, at least, it is anticipated to be available very, very soon indeed.
TP1 (ThirdParty): Of course, that is unlikely to have the same relevance to these proceedings as the Feinstein report, which is a comprehensive black box overview of a program now recognized even by those who were closest to the intelligence community in the United States to have been a grave error on their part and one which has left a stain on America's reputation throughout the world.
TP1 (ThirdParty): Madam President, I want, if I may, just to touch on what we mean by the right to truth.
TP1 (ThirdParty): Because as I said, within the United Nations, we see this as a right which has two dimensions, a private dimension and a public dimension.
TP1 (ThirdParty): But there are some voices that still dispute the proposition that the right has a collective dimension belonging to society as a whole.
TP1 (ThirdParty): So for example, in their separate opinion in the El Masri cases, judges Cacer de Val and Lopez Guerra both state in terms that, and I quote, as far as the right to truth is concerned, it is the victim and not the general public who is entitled to this right.
TP1 (ThirdParty): The human rights mechanisms of the United Nations do not share the view of those two judges.
TP1 (ThirdParty): It is the consistent position of the UN mechanisms that where gross or systematic human rights violations are alleged to have occurred, the right to know the truth is not one that belongs solely to the immediate victim, but also to society.
TP1 (ThirdParty): And whilst the two dimensions may overlap, they of course will have different procedural implications.
TP1 (ThirdParty): But both need to be accommodated in cases where, such as is the position with this particular program, there has been undoubtedly a pattern of systematic and deliberate and organized human rights violation on a grand scale.
TP1 (ThirdParty): The right to truth as a separate right owes its first recognition to the inter-American human rights system and was a response to the widespread disappearances in the South American dictatorships.
TP1 (ThirdParty): But it's since come to be recognized within the United Nations instruments as a dual aspect right in a range of contexts where gross and systematic violations are engaged.
TP1 (ThirdParty): And the reasoning behind it is simple.
TP1 (ThirdParty): And it was explained by my colleague, the special rapporteur on the right to freedom of expression, Mr. Frank LaRue,
TP1 (ThirdParty): just over a month ago in his most recent report to the General Assembly, which I've had added to the court file in these proceedings.
TP1 (ThirdParty): I'm just going to read you a short passage which summarizes why it is that this right must be seen in both dimensions.
TP1 (ThirdParty): He says, the right to truth is a collective right which ensures society access to information that is essential for the workings of democratic systems.
TP1 (ThirdParty): And it's also a private right for relatives of victims which affords a form of compensation.
TP1 (ThirdParty): In the context of serious human rights violations, there is a particular obligation which requires states to inform not only the victims and their families, but also society as a whole of what has happened.
TP1 (ThirdParty): The right to truth implies not only the clarification of the immediate circumstances of the particular violations, but also the clarification of the general context, the policies, and institutional failures and decisions that enabled their occurrence.
TP1 (ThirdParty): Beyond this, the realization of the right to truth may require the dissemination of information on violations in order to restore confidence in state institutions.
TP1 (ThirdParty): It goes really, in other words, to the heart of the very democratic principles which underlie this convention.
TP1 (ThirdParty): And that is why we say the court in El Masri, the majority, was right to link the collective aspect of the right to truth with the gravity of the allegations that were at issue in that case.
TP1 (ThirdParty): If you look at paragraph 191, it is directly anchored, that statement of principle, in the seriousness of the allegations.
TP1 (ThirdParty): It is not, of course, every individual violation of the convention in isolation and of a civil or political right of a different and perhaps less grave character that would carry with it a collective right for the public at large to know the full truth.
TP1 (ThirdParty): But where it's established that gross or systematic violations have occurred, the right to know what happened and why are essential foundations for preventing impunity, dispelling an appearance of official tolerance, guaranteeing non-repetition, and for participatory decision making in a democracy so that the citizenry are in a position to know who did and did not do what when they are deciding who should be their government for the future.
TP1 (ThirdParty): While that is an approach which may seem counterintuitive to a convention lawyer, because we are, after all, lawyers dealing with a convention that was pioneering for the very fact that it enabled individuals for the first time to be the subjects of international law.
TP1 (ThirdParty): And many of its provisions are crafted around the position of the individual vis-a-vis the state, including Article 1, and perhaps above all, the right of individual petition.
TP1 (ThirdParty): But once it's recognized that in cases of gross or systemic violation, there's a freestanding right to truth belonging to society at large, then it follows that any individual with a legitimate interest in the truth is entitled to invoke that right.
TP1 (ThirdParty): If it were the right to truth to be confined to the individual who had suffered the violation or his representatives, then the exposure of grave and systematic international crimes would necessarily be dependent on the chance occurrence of there being an individual victim or relative who was able and willing to bring proceedings.
TP1 (ThirdParty): Let us imagine for a moment that more of those detained as a result of this program had died.
TP1 (ThirdParty): Some did, we know.
TP1 (ThirdParty): But let's assume that more had died.
TP1 (ThirdParty): And let's assume that their relatives did not want to identify themselves as individuals associated with people who had been detained, tortured for al-Qaeda purposes.
TP1 (ThirdParty): Who then owns the right to truth?
TP1 (ThirdParty): Where human rights violations are sufficiently serious, and I repeat, the threshold is gross or systematic violations, then the societal interest in the truth cannot be made to depend on chance.
TP1 (ThirdParty): That would be contrary to the very essence, object, and purpose of human rights law, of this convention, and of the underlying democratic principles on which it is based.