TrustHLT/LaCour huggingface dataset:
Mirjana Lazarova Trajkovska (JudgeP): Mr. Radu Bodnar of the Bucharest Airport National Company,
Mirjana Lazarova Trajkovska (JudgeP): Council.
Mirjana Lazarova Trajkovska (JudgeP): Mr. Mihai Simionis of the Romanian Civil Aviation
Mirjana Lazarova Trajkovska (JudgeP): Authority, Council.
Mirjana Lazarova Trajkovska (JudgeP): Mr. Adrian Ștefan of the Romanian Air Traffic Services
Mirjana Lazarova Trajkovska (JudgeP): Administration, Council.
Mirjana Lazarova Trajkovska (JudgeP): The applicant, Mr. Al Nashiri , is represented by his counsel,
Mirjana Lazarova Trajkovska (JudgeP): Ms. Amrit Singh, Ms. Diana-Olivia Hatneanu,
Mirjana Lazarova Trajkovska (JudgeP): and Ms. Rupert Skilbeck, and also Ms. Nancy Hollander, advisor.
Mirjana Lazarova Trajkovska (JudgeP): Having consulted the agent of the government and the representatives of the applicant, I have determinated the order of the addresses as follows.
Mirjana Lazarova Trajkovska (JudgeP): Ms. Brumar for the government will speak first,
Mirjana Lazarova Trajkovska (JudgeP): followed by Ms. Ludușan, and then
Mirjana Lazarova Trajkovska (JudgeP): Ms. Singh for the applicant, followed by Ms. Hatneanu.
Mirjana Lazarova Trajkovska (JudgeP): I call Ms. Brumar.
GR1 (Government): Thank you for giving me the floor, Madam President, Honourable Members of the Court.
GR1 (Government): We appear before you today to present the Romanian Government's position in this case concerning the alleged secret detention and ill-treatment of the applicant Abdal Rahim Husein Muhammad Al-Mashiri on Romanian soil.
GR1 (Government): Following the questions that this Court indicated the parties were to answer during this public hearing, I will, in the first part of our intervention, address the issue of state's responsibility in connection to the events invoked by the applicant's representatives.
GR1 (Government): I will then kindly ask you to give the floor to my colleague, who will present our arguments on the effectiveness of the investigation carried out by the Romanian authorities, both prior and subsequent to the criminal complaint lodged by the applicant's representatives before the domestic investigative bodies.
GR1 (Government): Madam President, before plunging into the issue of state's responsibility, allow us to make some preliminary remarks on the general context of the case and on its admissibility.
GR1 (Government): Firstly, as a member of the international community, Romania is profoundly attached to the values of democracy, rule of law, promotion and protection of human rights.
GR1 (Government): The issue of alleged secret detention, flights and facilities was always approached in the spirit of sharing the universally recognised foundations of a democratic state.
GR1 (Government): The Government could not but regret the treatment the applicant was subjected to, treatment documented by official information released by third countries on this issue.
GR1 (Government): As the Court rightly put it, torture and ill-treatment are not acceptable, not even in the harshest circumstances.
GR1 (Government): Still, the Government maintained their position that no proof emerged to confirm that such treatment occurred under Romanian jurisdiction.
GR1 (Government): In this context, we consider appropriate to underline from the very beginning that there was no blunt denial regarding the CIA HVD programmes, nor did our State reject in a rigid and arbitrary manner the allegations concerning its potential involvement in these programmes.
GR1 (Government): The negative answer to the existence of suspected flights or secret detention facilities was given by our authorities after consultation, inquiry, in a manner of cooperation that was not always recognised by the different international investigations, but that is showed by various responses that we will present during these oral pleadings.
GR1 (Government): However, we consider it deplorable that inferences of critical weight have been drawn from the negative answer alone, without just significance being attributed to the cooperative spirit shown by the authorities.
GR1 (Government): It is not possible, nor admissible, to consider that only a positive answer to these allegations would satisfy the threshold of cooperation and transparency required by these international demarches.
GR1 (Government): Secondly, before addressing the merits of the case, we would like to reiterate that we maintain all the objections as to the admissibility of the present application as detailed in our written submissions.
GR1 (Government): The Government does not ignore the Court's findings in its recent Nasser and Ghali judgement.
GR1 (Government): Still, as required by the principles of subsidiarity and legal certainty, this Court can only be seized with an application once the existing domestic remedies have been exhausted and only in a time limit of six months from the final domestic decision.
GR1 (Government): In the case at hand, we cannot but notice that the applicant's representatives lodged the present application two days after presenting a criminal complaint before the Romanian competent investigative body.
GR1 (Government): While we accept that with the passing of time, the objection of non-exhaustion of domestic remedies could find itself obsolete, in the present situation, the facts point to the contrary.
GR1 (Government): The domestic investigation is still ongoing, and even if the investigative phase were before the prosecutor were completed, the solution would at least be submitted to a Court for a legality evaluation.
GR1 (Government): This evaluation could lead to the reopening of the investigation.
GR1 (Government): At the same time, the investigative phase could end with an indictment, and criminal proceedings before Court would follow.
GR1 (Government): Moreover, the circumstances surrounding the introduction of the criminal complaint lead the Government to invoke the non-respect of the six-month rule.
GR1 (Government): Thus, the applicant's representatives themselves acknowledged that the criminal complaint was filed only as a precautionary measure, the applicant believing from the start that domestic remedies in Romania were plainly ineffective.
GR1 (Government): The attitude is also confirmed by the more than limited interest manifested by the applicant's representatives for the internal investigation.
GR1 (Government): For a period of two and a half years, they did not take any step in order to participate in the criminal investigation, and when they finally did, they asked for a piece of information that was already in their possession, namely the number allotted to the criminal investigation file.
GR1 (Government): At this point of our oral submission, we have to stress that in his application lodged against Poland on 6 May 2011, the applicant affirmed that he was moved from Guantanamo Bay to Rabat and then to another CIA prison in Bucharest, Romania, sometime after 27 March 2004.
GR1 (Government): It follows that even though the applicant had knowledge about Romania's alleged involvement in his secret detention, at least from 6 May 2011, he chose to refer his accusations to the Romanian authorities and to this court only a year later.
GR1 (Government): The applicant explained this delay by showing that only on 8 December 2011 did details relating to the precise location of the prison in Romania become known, without arguing why the alleged location of the secret prison on Romanian territory had such an important bearing on his decision to present an application against our state.
GR1 (Government): Madam President, Honorable Judges, with your kind permission, I will now address the issue of state responsibility.
GR1 (Government): In this matter, as your court constantly accepted, the necessary reference is to general international law standards.
GR1 (Government): According to international law, in order for an act to be classified as an international wrongful act engaging the state's responsibility, that act must be attributable to a state.
GR1 (Government): Summarizing the principles of responsibility codified by the International Law Commission on this topic, one could refer either to direct knowledge and involvement in an international wrongful conduct, or to the indirect knowledge inferred from the assumption that a state exercising its jurisdiction over its territory should not ignore the perpetration of the international wrongful act within the border of its territorial jurisdiction.
GR1 (Government): For the purpose of better understanding the responsibility that would have been engaged had there been in Romania a secret detention facility, it is necessary to distinguish from the perspective of state responsibility different scenarios on the state's attitude and conduct.
GR1 (Government): Its potential agreement on putting a facility at the disposal of another state, its knowledge on the exact purpose of the operation of a secret detention facility, the exercise of state's authority over that facility, the knowingly permitted use of its territory for activities implying human rights violations.
GR1 (Government): Madam President, no information was put forward by the documents and other evidence adduced to the file of this case by the international inquiries or by the non-governmental sources to indicate that the Romanian authorities put in place and ran, autonomously or in cooperation with a third state, such a secret detention facility.
GR1 (Government): No information advanced the idea that the Romanian authorities knowingly and expressly accepted, after being briefed on the goal or activities that were to be performed in that facility, to put such a location at the disposal of third parties.
GR1 (Government): Therefore, the only possible approach from the state's responsibility perspective would be to determine if it had knowingly permitted its territory being used by another state for activities implying human rights violations.
GR1 (Government): In this case, the question is whether, following public awareness regarding the secret detention program, the authorities should have become aware of the fact that the flights operated on the territory of Romania were CIA-operated flights, and from this they should have inferred that there was a secret detention facility in Romania as well, and act in accordance with their obligation of due diligence.
GR1 (Government): Relevant for this type of state responsibility is the Kofu Channel case.
GR1 (Government): In this case, decided by the International Court of Justice, the world jurisdiction established the threshold required for circumstantial evidences underlying that, quote, a charge of such exceptional gravity against the state would require a degree of certainty, end quote.
GR1 (Government): Moreover, the ICJ considered that, quote, it cannot be concluded from the mere facts of the control exercised by a state over its territory and waters that that state necessarily knew or ought to have known of any unlawful act perpetrated therein, nor yet that it necessarily knew or should have known the authors.
GR1 (Government): This fact by itself and apart from other circumstances neither involves prima facie responsibility nor shifts the burden of proof.
GR1 (Government): The ICJ considered as well the issue of indirect proof and admitted that indirect evidence is accepted in all systems of law.
GR1 (Government): However, it concluded that, quote, the proof may be drawn from inferences of fact provided that they leave no room for reasonable doubt, end quote.
GR1 (Government): Madam President, your court also accepts that with regard to the establishment of facts and the assessment of evidence, only the coexistence of sufficiently strong, clear, and coherent inferences or of similar unrebutted presumptions of fact may be considered as proof.
GR1 (Government): In the case at hand, no such strong, clear, or concordant inferences exist.
GR1 (Government): It is the firm position of the government, supported by the court's case law, that not only objective elements related to the existence of a certain fact or event must be adduced, but also that the subjective attitude of the state must be taken into account.
GR1 (Government): The government do not intend to challenge the existence of the special detention program operated by the CIA, the fact that the applicant was subjected to this program, or the treatment he received.
GR1 (Government): These are objectively established factual elements attested by official documents released by a third country.
GR1 (Government): The government do not intend to deny the landing and takeoff of several flights on Romanian airports.
GR1 (Government): These flights are at least partly documented by the Romanian Senate's report in 2008, and publicly available evidence confirmed their stop on Romanian soil.
GR1 (Government): However, beyond the subjective elements, the government considers that no evidence has been produced to show the smallest degree of knowledge on the alleged hidden purpose of the flights landing in and taking off from Romanian airports.
GR1 (Government): Thus, only in November 2005, as attested yesterday by expert number two, did the first information about the alleged existence in some Eastern European countries of secret detention facilities designated for suspected terrorists and run by the CIA surface in the media.
GR1 (Government): To this date, the only information available concerned the detention facilities in Guantanamo Bay, Afghanistan, Egypt, and Jordan, and the specific case concerning the surrender of six Algerian men by Bosnian Federal Police into U.S. custody.
GR1 (Government): The information also made statement of the establishment of military commissions set up for trying persons accused of terrorist acts.
GR1 (Government): However, the identity of those persons was unknown, as was the decision of the third state as to the person that were to actually be tried before military jurisdiction or before federal courts.
GR1 (Government): At the relevant time, from 2003 to 2005, there was no information that would have allowed European states to suspect that some of the American flights that landed in Europe were used for the transfer of prisoners.
GR1 (Government): As for the allegedly suspicious flights, it should be noted that they represented private non-commercial flights and were treated as such.
GR1 (Government): Invoices were issued for all the services performed, as well as air navigation services sheets or ground handling charge notes.
GR1 (Government): The flights were included in the control lists of the navigation records.
GR1 (Government): Several remarks regarding the change of the flight plans and the authorization of non-commercial flights need to be made.
GR1 (Government): Of great significance, the report and media are drawn from them in postulating the involvement of the state in the applicants' detention and in treatment.
GR1 (Government): In accordance with the relevant domestic and international regulations, every flight must have a flight plan.
GR1 (Government): Except for emergency issues, no possibility to land on other airports than the one indicated as destination or alternate destination exists.
GR1 (Government): Each flight plan must indicate beside the destination an alternate one.
GR1 (Government): The flight plan is established by the aircraft's operator.
GR1 (Government): The only potential involvement of authorities is limited to help with the transmission of the flight plan to the entity managing the integrated initial flight plan processing system.
GR1 (Government): The decision to use the alternate destination or the change of flight plan in flight is a unilateral action by the flight operator.
GR1 (Government): In our opinion, the acceptance of these changes in the flight plans is not indicative of a complicity of the Romanian authorities, as the said acceptance is in fact automatic.
GR1 (Government): Moreover, the apparent high number of flights from those analyzed by experts that had recourse to such a change should be evaluated in the context of general statistics on the number of flights managed by the domestic aviation authority daily, from more than 1,000 at the material time of fact to over 3,000 nowadays.
GR1 (Government): Some explanations are required also with regard to the authorization of private non-commercial flights.
GR1 (Government): According to domestic regulations, private international non-commercial flights on an ATS route did not need a special approval as such a flight was considered authorized following the filing of a flight plan, similar provisions being applicable in the case of a change of destination.
GR1 (Government): As for the STS state indicator, the government kindly asked the court to notice in the first place that such designation is vetted by the national authorities of the flag state and are directly opposable to third countries.
GR1 (Government): Moreover, according to the relevant rules, flights using STS state indicator shall not automatically qualify for exemption from any relevant flow regulations.
GR1 (Government): In fact, the only benefit deriving from such designation refers to ensuring a double vertical separation between airplanes.
GR1 (Government): Reason number three, although repeatedly asked, could not indicate any of the special privileges that STS state designation would entail, even if various reports have underlined this aspect as being of exceptional relevance when analyzing flight data.
GR1 (Government): As for the N85VM flight of 12 April 2004, the available documents attest that the flight was recorded in the table containing handling fees as well as in the control list of navigation records, that an invoice was issued and that the payment was operated by card, a copy of the air routing card being attached to the relevant documents.
GR1 (Government): Comparing the aforementioned aspects to the procedures followed by the American flight in Poland, as noted by the court in the Al-Nashiri judgment, the government cannot but notice the differences.
GR1 (Government): In our case, the documents mentioned above, as well as the documents available in the criminal file, show that the N flights went through the standard handling flow and payment was made in an account.
GR1 (Government): Also, the government contends that the Romanians could not, in any circumstance, be held reliable for having issued a false landing permit, as the court held in the Al-Nashiri v. Poland
GR1 (Government): case, seeing that, in fact, after 11 November 2003, no such permits were issued and that overflight and non-commercial stopovers were allowed only on the basis of the submitted flight plan and of a valid insurance.
GR1 (Government): Important differences can be noted also with regard to the witnesses' depositions.
GR1 (Government): The picture painted by the declarations of the people working at Bonesa Airport is entirely different from the image of the Shimani Airport, as retained by the court in the Al-Nashiri judgment.
GR1 (Government): No foreign vehicles were seen entering the premises of the Bonesa Airport.
GR1 (Government): There was no military intervention in order to secure the airport perimeter, and most certainly, American officials did not assume control of the airport on the date in question, and no HVDs were seen entering the country, as witnesses quoted in the 207 Marty report stated with regard to the Shimani Airport.
GR1 (Government): At this point, some clarifications are needed also as far as the alleged location of the secret detention facility is concerned.
GR1 (Government): In 2007, Senator Marty seemed convinced, quoting reliable sources within the CIA, that a secure area for CIA transfers and detentions had been created near the Mikhail Kogalnichanu Airport.
GR1 (Government): In 2009, the New York Times quoted officials saying that one jail was a renovated building on a busy street in Bucharest.
GR1 (Government): In 2011, other reliable sources indicated the Onis building, which is located in a residential area and not on a busy street, as the site of the secret CIA detention center in Bucharest.
GR1 (Government): The experts found arguments supporting their theories with a surprising ease, without analyzing the contradictions and choosing from the previous reports only the convenient elements.
GR1 (Government): For example, Senator Marty compared the system used at Mikhail Kogalnichanu Airfield with the system used at Kabul Airport, while Commissioner Hammerberg found support for his assertions regarding the use of the Onis building in the fact that a precedent consisting in the use of an existing state facility had been found in Poland.
GR1 (Government): No attention was given to the obvious differences between a remote location and a building used on a daily basis by government officials in a European capital.
GR1 (Government): Also statements from persons working and living near the Onis building, arguing that if a secret prison had been there, they would have seen some activity, such as suspicious vehicles, were ignored, invoking the Romanian communist past and the fact that the Romanians don't have the tendency to snoop around due to their fear of a repressive regime.
GR1 (Government): On the contrary, in Lithuania, also a former communist country, testimonies by witnesses living near the alleged secret location were considered relevant for the establishment of facts.
GR1 (Government): Given this element, it seems to us that the Norman conclusion reaching process was reversed in the case of Romania and that any arguments were used in order to support a pre-established conclusion.
GR1 (Government): Madam President, Honorable Members of the Court, it takes more than hints of speculations to establish a state responsibility.
GR1 (Government): For all the elements at the government's disposal, elements adduced to the file, it is our contention that no aspect related to the Romanian state responsibility for the detention and ill-treatment of the applicant and for its subsequent transfers can be established beyond reasonable doubt in the present case.
GR1 (Government): Madam President, for the second part of our oral pleading, I kindly ask you to give the floor to my colleague.
GR2 (Government): Thank you, Madam President.
GR2 (Government): Madam President, Honorable Judges, my task today before you is to present the essential elements that, from our perspective, show the in-depth analysis performed by the domestic authorities.
GR2 (Government): Firstly, the government kindly asked the Court to depart from the opinions expressed with regard to the work of the Romanian Senate's Investigation Committee and to observe the complex nature of its inquiry.
GR2 (Government): The previously classified annexes to the Senate report helped to shed some light on the work of the Committee and prove the thorough nature of the investigation.
GR2 (Government): Information was requested and received concerning the purpose of the allegedly suspicious flights, the service rendered by the civil handling agents, as well as about the diplomatic overflight requests received by the Ministry of National Defense from the United States Embassy from 2001 to 2005.
GR2 (Government): The declassified annexes support the conclusion that the purpose of the end flight stops at Baniasa Airport was mainly a technical one.
GR2 (Government): Also, as stated in the report, it should be noted that the Investigation Committee carried out on-site investigations at all the airports mentioned by relevant international reports.
GR2 (Government): Furthermore, contrary to information presented in the FAVA report, the Investigation Committee's work, including the hearing of over 200 persons with attributions regarding flight records, verification, coordination, and on-ground security and services, as well as 14 meetings with official delegations, other politicians, and journalists.
GR2 (Government): The government underlined that the conclusions of the Investigation Committee were not simple statements, but the result of a real work of investigation extended from January 2006 to January 2007, whose value should not be underestimated only on the basis of the alleged lack of independence of its author.