TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): unknown after more than 10 years since the first reports of Romania's involvement in the CIA program were made public. The prosecution's efforts to build on the vast amount of information
AP1 (Applicant): and evidence in international inquiries or US reports already available in public domain were non-existent. For example, although by 2012 there was a vast amount of information,
AP1 (Applicant): including official US admissions on the existence of a CIA-operated secret edition program as opposed to a military operation, the prosecutor's minutes of 3 December 2012, analyzing the applicant's criminal complaint and the statuses and arrangements regarding the bilateral agreements between Romania and the United States of America, focused on the framework of US military operations in Romania. Even if such an analysis could have made some sense at the end of 2005, beginning
AP1 (Applicant): of 2006, when there was very little information publicly known on the framework of the secret detention program, 7 years later it should have been obvious that information on the US military operations in Romania were completely irrelevant to the matter under investigation.
AP1 (Applicant): Another example of the ineffectiveness of the investigation is the fact that there is no indication in the criminal investigation file that the widely publicized 2014 US Senate report, which must have been known to any diligent investigator given the vast amount of information on the matter it contained, so there was no indication, there is no indication in the criminal files that this report was taken into consideration in any way or that there was any effort to corroborate the information in the report by gathering any additional evidence. In fact, it appears from the domestic case file that the investigation has been
AP1 (Applicant): completely stalled for at least 3 years. With the exception of two witness statements which
AP1 (Applicant): were taken due to a very specific context which I cannot elaborate on due to confidentiality limitations in the case, but which had nothing to do with the US Senate report, nothing at all has happened in the investigation since 2013-2014. Moreover, no information on the
AP1 (Applicant): status of the investigation was disclosed to the applicant or the general public. In
AP1 (Applicant): fact, if it were not for the current application before the Court, the victim and his representatives would have been in total darkness as to the progress of the investigation. We agree that
AP1 (Applicant): given the very specific circumstances surrounding the applicant, contacting him directly would have been impossible, but there was no attempt whatsoever to at least contact the applicant's representatives, let alone involving them in any way in the investigation or informing them on the progress. In this context, the applicant recalls the Court findings in its
AP1 (Applicant): judgment against Poland of 16 February 2015. The Court stated that even if there is a strong
AP1 (Applicant): public interest in maintaining the secrecy of sources or information or material, in particular cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible,
AP1 (Applicant): the difficulties at these cases should be counterbalanced in such a way that the party can effectively defend its interests. Where allegations of serious human rights violations
AP1 (Applicant): are involved in the investigation, the right to truth regarding the relevant circumstances of the case does not only belong solely to the victim of the crime and his or her family, but also to other victims of similar violations and the general public, who have the right to know what has happened. There must be a sufficient element of public scrutiny of the
AP1 (Applicant): investigation or its results to secure accountability in practice as well as in theory. Or, in the
AP1 (Applicant): present case, the domestic authorities failed completely. It was only by chance that the
AP1 (Applicant): information on the witness being heard by the prosecutor reached the media at some point.
AP1 (Applicant): No information was actively made public by the authorities. It is the applicants' view
AP1 (Applicant): that there can be only one possible explanation for such a constant pattern of behavior of the domestic authorities for the past ten years and a half. The lack of will to investigate
AP1 (Applicant): the allegations that Romania was constantly and without any basis denying. Indeed, as
AP1 (Applicant): the second expert testified at the fact-finding hearing, no country implicated in the CIA rendition program reacted with as much hostility towards investigative efforts as Romania did.
AP1 (Applicant): The lack of will to investigate exists also at the highest judicial investigation bodies, that is, the General Prosecutor Office. Results with clarity from the 19 October 2012 letter
AP1 (Applicant): the General Prosecutor Office addressed to the government's agent. The letter is an annex
AP1 (Applicant): to the government's observation of December 2012, in respect of which no request for confidentiality was made. The letter clearly states that the illegal detention of the applicant is out
AP1 (Applicant): of the question, given his status as a high-value detainee, that the various publicly available sources are not to be taken into account by the prosecutor, even if some provided detailed information which could have been corroborated by the official investigation, and that the highest Romanian authorities had constantly denied the allegations, as if such denial would have constituted any basis for the prosecutor to dismiss the applicant's claim.
AP1 (Applicant): Another example of the complete lack of will on the part of the prosecutor to actually investigate the complaint is the sixth document of four pages, annexed to the government's observation of 2015. As confidentiality for this document was granted and no summary was
AP1 (Applicant): provided by the government, I will just kindly ask you to study it and think if anyone could officially ask those questions in writing and actually expect an official answer to be provided to be used in the investigation. Moreover, the lack of an answer should have
AP1 (Applicant): indicated there might be some basis in the applicant's complaint, but such an inference was never made by the prosecutor. An intricate cover-up operation, such as the CIA secret
AP1 (Applicant): detention program, would have required an equally complex and sophisticated investigation.
AP1 (Applicant): The one carried out by the domestic authorities is far from any kind of sophistication. For
AP1 (Applicant): example, asking people that could have not known anything about the CIA operations if they knew something is not only useless, but is quite a serious indication that the investigation looked only in places where there was for certain nothing to be found.
AP1 (Applicant): One can now wonder what would convince domestic authorities to employ adequate means to investigate such a sensitive matter. Would admissions of those involved suffice? Probably not, as
AP1 (Applicant): such admissions were made by the U.S. authorities, even if in a redacted form, to no avail.
AP1 (Applicant): Considering all the previously mentioned elements, the applicant kindly asks the Court to find that the investigation carried out at the domestic level was not prompt, thorough, and effective, or sufficiently transparent, as required by Article III of the Convention, although there was a credible claim that the applicants were subjected to torture, ill-treatment, and secret detention in Romania. On the question of the existence of an effective
AP1 (Applicant): remedy for the purposes of Article XIII of the Convention, for the allegations under Article III, V, VIII, and Article II taken together with Article I, Protocol VI, the applicant maintains that no such effective remedy exists in Romania. The only available
AP1 (Applicant): remedy at his disposal is a criminal complaint he filed in 2012, which, as stated before, proved completely ineffective in his particular case. Moreover, his criminal complaint covered
AP1 (Applicant): all aspects under the mentioned articles, but the prosecutor started the in-rem investigation only to a very limited number of cases of crimes in February 2014.
AP1 (Applicant): This aspect was never communicated to him or his representatives, and he became aware of it only a couple of weeks prior to the present hearing, due to the confidential documents provided by the government. He has now passed a breach to appeal the decision of the prosecutor,
AP1 (Applicant): which was never communicated to him. Therefore, he kindly asks the Court to find that Article
AP1 (Applicant): XIII of the Convention was also violated.
Mirjana Lazarova Trajkovska (JudgeP): Thank you, Ms. Hatneanu.
Mirjana Lazarova Trajkovska (JudgeP): Now I call judges if they wish to ask questions.
Mirjana Lazarova Trajkovska (JudgeP): Judge Spano, please.
Robert Spano (Judge): I have several questions that I want to pose to the government and also to the applicants.
Robert Spano (Judge): Just to put my questions in context, there are three issues that are before the court for us to examine.
Robert Spano (Judge): Number one, was a CIA detention site operated in Romania in 2003 to 2005?
Robert Spano (Judge): And if so, was the applicant detained during that period?
Robert Spano (Judge): And thirdly, if both of those questions are answered affirmatively, can the applicant's detention and treatment in Romania be attributed to the Romanian government?
Robert Spano (Judge): So my first question goes to the government's arguments in the papers and also today during the pleadings as regards the Romanian authorities and government's awareness, assuming the first two questions were answered affirmatively.
Robert Spano (Judge): In other words, a detention site was there and that Mr. Al Nashiri was detained.
Robert Spano (Judge): I want to draw the government's attention to paragraph 441, subparagraph 4, of the Al Nashiri versus Poland judgment, which puts the awareness issue in a chronological context.
Robert Spano (Judge): There, the court found that already between January 2002 and August 2003, remember the allegation here is that the detention site in Romania was operational from 2003 to 2005, numerous public sources were consistently reporting ill treatment and abuse to which captured terrorist suspects were subjected in US custody in different places.
Robert Spano (Judge): Moreover, in the 2003 PACE resolution adopted in June 2003, of which Poland as any other contracting state, among them, of course, Romania, the parliamentary assembly of the Council of Europe was, and I quote, deeply concerned at the conditions of detention of captured unlawful combatants held in the custody of the US authorities.
Robert Spano (Judge): And the court found all these sources reported practices resorted to or tolerated by the US authorities that were manifestly contrary to the principles of the convention.
Robert Spano (Judge): Consequently, there were good reasons to believe that a person in US custody under the HVD program could be exposed to a serious risk of treatment contrary to those principles.
Robert Spano (Judge): My question to the Polish government is this, assuming, Romanian government is this, assuming that the first two questions that I mentioned were answered in the affirmative, how would you invite the court to distinguish your case and the circumstances in Romania as regards governmental awareness from the judicial facts found as regards to the situation in 2002 and 2003 in paragraph 441 of the Al Nashir versus Poland judgment?
Robert Spano (Judge): My second question goes to the issue, again, of awareness.
Robert Spano (Judge): And I want to draw the Romanian government's attention to two documents which I want clarification of, because they were not mentioned during your pleadings here today.
Robert Spano (Judge): On 13 December, 2014, an online version of Der Spiegel rendered, publishes an article which deals with information provided by the former Romanian chief of operations Ioan Talpeş.
Robert Spano (Judge): In this article, in the verbatim English translation, it is stated that Mr. Talpeş said
Robert Spano (Judge): that there were one or two locations in Romania at which the CIA, and I quote, probably held persons who were subjected to inhuman treatment.
Robert Spano (Judge): Talpeş had previously confirmed the existence of, and I quote, a CIA transit camp, as he calls them in the Bucharest daily Adevarul.
Robert Spano (Judge): On June 8 of this year, the European Parliament issued a resolution.
Robert Spano (Judge): In this resolution, in paragraph 13, it is stated, the parliament recalls that the former director of the Romanian secret services, Ioan Talpeş, admitted on record to the European Parliament delegation that he had been fully aware of the CIA's presence on Romanian territory, acknowledging that he had given permission to lease, I quote, lease a government building to the CIA.
Robert Spano (Judge): May I please ask the Romanian government to comment on the substance of these two documents and the relevance in the court's assessment?
Robert Spano (Judge): My third question goes to the effectiveness of the criminal investigation.
Robert Spano (Judge): And my question has two limbs.
Robert Spano (Judge): Firstly, may I ask, is it the contention of the Romanian government that the parliamentary inquiry itself concluded in 2008 that in and of itself was effective for the purposes of Article 3?
Robert Spano (Judge): In other words, the fact that we have a pending criminal complaint is not necessary for the resolution of the Article 3.
Robert Spano (Judge): In other words, if no criminal complaint would have all been invoked or established, then the parliamentary inquiry would itself be enough for Romania to have sufficiently exercised or sufficiently dealt with the issue under Article 3.
Robert Spano (Judge): And may I ask in that context, did the parliamentary inquiry have access to classified documents in its analysis?
Robert Spano (Judge): I know there is some issue on this in the papers, but please clarify.
Robert Spano (Judge): As regards to the criminal investigation, which was based on the applicant's criminal complaint of 29 May 2012, may I receive clarification of what is the status under statutory Romanian law of the applicant?
Robert Spano (Judge): Is he a formal victim under Romanian criminal procedural law?
Robert Spano (Judge): And if so, you mentioned that he had a right to be notified of procedural decisions and he had a right to be present during witness questioning.
Robert Spano (Judge): Could you please clarify what is the extent of his possible victim status position?
Robert Spano (Judge): My last question goes to both parties.
Robert Spano (Judge): And it deals with assuming that the applicant, Mr. Al Nashiri,
Robert Spano (Judge): was present on Romanian territory as a CIA detainee.
Robert Spano (Judge): May I draw the attention of both parties to page 73 of the US Senate report?
Robert Spano (Judge): On that page, it is stated, and I quote, in October 2004, 21 months after the final documented use of the CIA's enhanced interrogation techniques against Al nashiri, an assessment by CIA contract interrogator Dunbar and other CIA interrogator concluded that Al Nashiri provided, and I quote, essentially no actionable information.
Robert Spano (Judge): And I quote, the probability that he has much more to contribute is low.
Robert Spano (Judge): There is then a reference in a footnote, 372, stating that in June 2005, the detention site Black, which the allegation is the Romanian site, chief of base suspended even these debriefings because it was, and I quote, the very, very rare moment that Alnashiri would recognize a photograph and because the debriefings often were the catalyst for his outbursts.
Robert Spano (Judge): May I, on this basis, ask both parties to comment on what they consider to be proven as the application of the EITs, the enhanced interrogation techniques, if the court were to conclude that Mr. Al Nashiri
Robert Spano (Judge): was indeed detained in that period, the reason I ask this is because it matters for the qualification by the court of an eventual assessment under Article 3 of the nature of the treatment that the applicant was subjected to.
Mirjana Lazarova Trajkovska (JudgeP): Thank you, Judge Spano.
Mirjana Lazarova Trajkovska (JudgeP): Now I turn to Judge Sicilianos.
Linos-Alexandre Sicilianos (Judge): Merci beaucoup, Madame la Présidente.
Linos-Alexandre Sicilianos (Judge): C'est une question qui concerne le gouvernement, mais qui pourrait, le cas échéant, être aussi commentée par les requérants.
Linos-Alexandre Sicilianos (Judge): J'ai entendu avec beaucoup d'intérêt les éléments fournis par l'agent du gouvernement au sujet des articles sur la responsabilité des Etats adoptés par la Commission d'ordre international des Nations Unies en 2001 et plus particulièrement au sujet des dispositions de ces articles concernant le problème, la question de l'attribution à l'Etat.
Linos-Alexandre Sicilianos (Judge): Et il ne fait pas de doute que ces articles, du moins ceux qui codifient, qui concernent l'attribution, codifient l'état actuel du droit international général.
Linos-Alexandre Sicilianos (Judge): La Cour internationale de justice l'a affirmé au moins à trois reprises.
Linos-Alexandre Sicilianos (Judge): Mais de notre côté, le rapport du Sénat américain de 2014 avance et répète constamment que tous les sites de détention de la CIA en Europe et ailleurs ont pu fonctionner dans le respect de la souveraineté de l'Etat concerné, dans le respect de la souveraineté de l'Etat concerné.
Linos-Alexandre Sicilianos (Judge): Et j'aimerais savoir comment est-ce que vous comprenez cette affirmation au regard des règles applicables en matière d'attribution que vous avez mentionnées.
Mirjana Lazarova Trajkovska (JudgeP): Judge Streteanu, please.
Florin Streteanu (Judge): Merci beaucoup. J'ai deux questions.
Florin Streteanu (Judge): La première adressée au gouvernement, la deuxième adressée aux représentants du requérant.
Florin Streteanu (Judge): En ce qui concerne la question posée au gouvernement, j'aimerais revenir un petit peu sur les statuts de vol qui ont atterri, notamment sur l'aéroport de Bonaissa, le gouvernement a soutenu dans ses observations écrites et aussi aujourd'hui dans sa plaidoirie, que ces vols n'avaient pas un statut spécial en ce qui concerne l'immunité pour les personnes se trouvant au bord de ces avions, ni à part le fait qu'en général on a soutenu qu'il s'agissait tout simplement des scales techniques.
Florin Streteanu (Judge): Vu ces affirmations, j'invite le gouvernement à préciser sa position à l'égard de l'incident souffert le 6 décembre 2004, incident impliquant l'un de ces avions et à l'égard duquel le rapport rédigé par le Parlement européen fait mentionner le fait que les personnes se trouvant au bord de cet avion sont tout simplement disparues sans avoir pu être vérifiées, sans avoir pu être enregistrées par la police de frontière.
Florin Streteanu (Judge): Donc j'aimerais avoir la position, le commentaire du gouvernement à l'égard de cette affirmation-là.
Florin Streteanu (Judge): La deuxième question, adressé au representant du requérant, dans la mesure où, supposons que les requérants aient été détenus sur le territoire roumain, d'après les représentants du requérant, quel a été le pays tiers vers lequel le requérant a été transféré après sa détention en Roumanie et savoir si ce transfert vers ce pays tiers a aggravé de quelque façon que ce soit la situation juridique ou personnelle du requérant, ça veut dire à l'égard de son statut juridique, à l'égard du régime de détention, à l'égard des sanctions applicables, etc.
Florin Streteanu (Judge): Merci.
Mirjana Lazarova Trajkovska (JudgeP): Thank you, Judge Streteanu.
Mirjana Lazarova Trajkovska (JudgeP): If there are no more questions, the court will now break for 15 minutes to enable parties to prepare their answers to the questions of the judges and also their response to their opponents' arguments.
Mirjana Lazarova Trajkovska (JudgeP): The court will resume the hearing at 10.30.
Mirjana Lazarova Trajkovska (JudgeP): The Court resumes the hearing and I call Ms. Brumar.
Mirjana Lazarova Trajkovska (JudgeP): The floor is yours, Ms. Brumar.
GR1 (Government): Thank you, Madam President.
GR1 (Government): In responding to the questions put by the honorable judges, the first question related to the distinction that we would like to invite the court to make vis-a-vis its findings in the Al-Nasiri versus Poland judgment.
GR1 (Government): As I tried to explain in our oral submissions, it is our reading of the judgment that the court not only established objective elements as to the existence of facility, as to the treatment that the applicant was subjected to, but also subjective elements pointing to the attitude of the state, pointing to its knowingly permission granted to third authorities to use its territory for activities implying human rights violations.
GR1 (Government): And if my reading of that judgment is correct, the court put an emphasis on the fact that in the Polish case, the procedures were extraordinary.
GR1 (Government): The location was under the security control of the Polish authorities.
GR1 (Government): The way the planes landed, the location of the airport, the way the planes were treated by the authorities with the exclusion of the personnel usually working in the airport, the unusual method of payment were all indications that together with what the court calls the acceptance of Polish authorities of a false landing permit, construed an image of an authority that is aware and that is participating in disguising the way the program is functioning and the traces that this program leaves.
GR1 (Government): In the case of Romania, all the planes were treated.
GR1 (Government): And the documents that we presented and attached to our observations confirm all the planes were treated by the normal standard procedure.
GR1 (Government): There was an incident.
GR1 (Government): It was noted.
GR1 (Government): And the prosecutor made further inquiry in order to clarify it.
GR1 (Government): No evidence suggests that these planes or their destination is disguised.
GR1 (Government): When they decided unilaterally to change the destination, either by using the alternate destination that was already assumed when filing a flight plan, either by changing the destination in flight, these aspects were mentioned and recorded in various documents, handling fees, charge notes, record of flights that the Romanian authorities produced.
GR1 (Government): There was no indication that something unusual, extraordinary, out of the procedural standards was happening that, combined with the objective elements that you mentioned in your question, would have directed the Romanian authorities to consider that something suspicious is happening with these planes.
GR1 (Government): That was our submission.
GR1 (Government): And it is true that from 2002, various information, including at the Council of Europe level, warned about the treatment of prisoners or detainees under US custody.
GR1 (Government): But as expert number two stated yesterday, only at the end of 2005, the information that Eastern European countries were involved emerged in the media.
GR1 (Government): It is not our contention that the Senate inquiry alone would in itself be enough to deal under Article III.
GR1 (Government): We consider it important to present the work and conclusions of the Senate committee in our oral submissions because, on one hand, valuable information was contained in the findings of the commission and in the annexes of the report.
GR1 (Government): And on the other hand, because the Romanian Senate report is an important element in assessing the prosecutor's obligation to initiate ex officio a criminal investigation.