TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): As the Marti report noted, this is consistent with a common practice in Macedonia of using non-jail locations to hide detainees in plain sight.
AP1 (Applicant): Why?
AP1 (Applicant): To make unlawful actions plausibly deniable.
AP1 (Applicant): For three days, Mr. Elmasri was interrogated repeatedly in English.
AP1 (Applicant): His requests for a translator and to contact the German embassy, a lawyer, or his family were all refused.
AP1 (Applicant): When he tried to leave, he was threatened with a gun pointed at his head.
AP1 (Applicant): Still later, during his hotel detention, he was promised that he could return to Germany if he would say that he belonged to Al-Qaeda, which he did not, so he refused.
AP1 (Applicant): On the 23rd of January, 2004, after 23 days of incommunicado detention, the Macedonian authorities transferred Mr. Elmasri to the custody of the CIA at the airport in Skopje.
AP1 (Applicant): Mr. Elmasri has described in compelling detail, detail that only someone who actually experienced
AP1 (Applicant): these events would know what happened when he arrived at the airport and was told that he would be given a medical examination before being returned to Germany.
AP1 (Applicant): Quote, I felt two people violently grab my arms.
AP1 (Applicant): I was beaten severely from all sides.
AP1 (Applicant): I then felt someone else grab my head with both hands, so I was unable to move.
AP1 (Applicant): Others sliced my clothes off.
AP1 (Applicant): I was left in my underwear.
AP1 (Applicant): In this, they attempted to take off.
AP1 (Applicant): I tried to resist at first, shouting out loudly for them to stop, but my efforts were in vain.
AP1 (Applicant): The pain from the beatings was severe.
AP1 (Applicant): I was terrified and utterly humiliated.
AP1 (Applicant): My assailants continued to beat me, and finally they stripped me completely naked and threw me to the ground.
AP1 (Applicant): I then felt a stick or some other hard object being forced in my anus.
AP1 (Applicant): I realized I was being sodomized.
AP1 (Applicant): Of all the acts that these men perpetrated, this was the most degrading and shameful.
AP1 (Applicant): End quote.
AP1 (Applicant): Mr. El-Masri was then dressed in a diaper and blindfolded.
AP1 (Applicant): His ears were plugged.
AP1 (Applicant): A bag was placed over his head, which made it hard for him to breathe.
AP1 (Applicant): He was thrown down on the floor of an airplane.
AP1 (Applicant): His arms and legs were spread-eagled, and his ankles were shackled to the sides of the plane.
AP1 (Applicant): He was then drugged by injection.
AP1 (Applicant): Some hours later, he landed in Kabul.
AP1 (Applicant): He was kept there in a filthy, unheated cell for the next four months.
AP1 (Applicant): Thirty-seven days into a hunger strike that he launched to protest his mistreatment, he was forcibly fed by hooded men who dragged him from his bed, bound his hands and feet, and stuffed a tube up his nose through which liquid was sent.
AP1 (Applicant): And finally, on the 28th of May, Mr. El-Masri was reverse-rendered to Albania, where he
AP1 (Applicant): was told not to tell anybody what had happened to him, and then placed on a commercial flight back to Germany.
AP1 (Applicant): That in sum is what Mr. El-Masri says took place.
AP1 (Applicant): Why should this Court believe him?
AP1 (Applicant): First, because this detailed complaint, prepared in 2006, closely tracks an initial statement that Mr. El-Masri gave to a lawyer two years before, within days of his return to Germany.
AP1 (Applicant): This was before anyone had heard of his case or had reported about it.
AP1 (Applicant): Since that time, Mr. El-Masri's description of events has remained remarkably consistent.
AP1 (Applicant): Indeed, one of the German prosecutors who brought criminal charges against CIA agents for what had happened underscored his credibility.
AP1 (Applicant): Thus, although Mr. El-Masri had been questioned for many hours, the prosecutor said, he always
AP1 (Applicant): has said the same things.
AP1 (Applicant): He never changed details.
AP1 (Applicant): I don't think it would be possible, he said, that someone could invent such a story.
AP1 (Applicant): But why else is Mr. El-Masri's account believable?
AP1 (Applicant): Because every subsequent investigation undertaken by national and European authorities and by his legal representatives, with the lone exception of Macedonia's insufficient attempt to cover up what happened, has unearthed evidence which corroborates his account in numerous ways.
AP1 (Applicant): What is that corroborating evidence?
AP1 (Applicant): First, there are documents from Eurocontrol, as well as additional flight data obtained through Freedom of Information requests and from the Macedonian Civil Aviation Authority and Skopje Airport.
AP1 (Applicant): This evidence confirms the landing, departure, and final destination of a plane known to be operating as a CIA rendition aircraft on the same day as, and fully consistent with, Mr. El-Masri's own account.
AP1 (Applicant): Just as Mr. El-Masri said, the records show that the CIA plane departed Skopje in the
AP1 (Applicant): early morning of 24 January 2004, and that it made one stop in Baghdad before heading on to Kabul.
AP1 (Applicant): The data also confirm that Macedonian authorities knew of the plane's Afghanistan destination 47 hours before it left Skopje.
AP1 (Applicant): Incredibly, the government now concedes that the public prosecutor took no steps to establish the purpose of the aircraft landing at Skopje Airport, even though all of this flight information came from the government's own records within its exclusive control.
AP1 (Applicant): Although the data show that the plane arrived in Skopje with no passenger and left Skopje with one passenger, the government apparently never sought to find out who that passenger was.
AP1 (Applicant): Finally, the flight data provide clear evidence of Macedonian government collusion in covering up the rendition operation.
AP1 (Applicant): The rendition flight was disguised in filings with international air traffic operators and in the Macedonian landing permit as a private, non-commercial flight, a characterization the authorities must have known to be false.
AP1 (Applicant): In short, the flight data coming from the government's own files provide powerful corroboration of Mr. El-Masri's account.
AP1 (Applicant): To see why, think of what an extraordinary coincidence it would be for a CIA plane to land in Skopje and take off for Kabul, hardly a frequent flyer destination, on precisely the date, as Mr. El-Masri says, that he was transferred by Macedonia to U.S. custody and
AP1 (Applicant): then taken on a CIA plane on that very route.
AP1 (Applicant): Is it really possible, as the government would have you believe, that Mr. El-Masri was not
AP1 (Applicant): on that plane?
AP1 (Applicant): This is more than coincidence, we submit.
AP1 (Applicant): It is fact.
AP1 (Applicant): Second, in addition to the flight data and the documentation, there is the expert statement by Gavin Simpson, who worked as an investigator, most notably as the advisor for Senator Dick Marti in the course of his inquiry for the PACE between 2005 and 2007.
AP1 (Applicant): He has spoken with numerous sources in both Macedonia and the United States who have direct knowledge of what happened in this operation.
AP1 (Applicant): And he found, just as the other investigations have, that Mr. El-Masri's detention by the
AP1 (Applicant): UBK, Macedonia's intelligence agency, was a coordinated operation undertaken at the request of the CIA.
AP1 (Applicant): Simpson also discovered that on the day that the CIA plane took Mr. El-Masri to Afghanistan,
AP1 (Applicant): the Macedonian authorities undertook extraordinary security measures, deploying a heavily armed detail of the security police who guarded the aircraft on the runway under strict instruction to keep their backs turned toward the plane.
AP1 (Applicant): So Mr. El-Masri's account is corroborated by the flight data, by the investigation that
AP1 (Applicant): we have submitted, and by the conclusions of the many official inquiries, but there is more.
AP1 (Applicant): This Court has before it the sworn statement of a former senior official of the government of Macedonia, who at the time of Mr. El-Masri's detention personally authorized the involvement
AP1 (Applicant): of the Macedonian intelligence agency, the UBK, in these events.
AP1 (Applicant): The statement directly contradicts the government's claim that Mr. El-Masri was held for only
AP1 (Applicant): five hours and then released.
AP1 (Applicant): Our UBK liaisons told their United States intelligence partners about Mr. El-Masri's
AP1 (Applicant): arrival and were told that this man was suspected of involvement in Islamic terrorism.
AP1 (Applicant): Acting in compliance with the U.S. request, the Macedonian government agreed to hold Mr.
AP1 (Applicant): El-Masri until he could be handed over to the U.S. authorities for further interrogation.
AP1 (Applicant): Mr. El-Masri was held for a certain period in a location in Skopje, secretly and without
AP1 (Applicant): incident under the constant supervision of UBK agents.
AP1 (Applicant): Our U.S. counterparts indicated they would send an aircraft and a team of CIA agents
AP1 (Applicant): to Macedonia to take custody of Mr. El-Masri and fly him out of the country.
AP1 (Applicant): As time passed, I indicated to our U.S. counterparts that Macedonia would have to release Mr. El-Masri
AP1 (Applicant): if this rendition could not take place quickly.
AP1 (Applicant): Ultimately, sometime on 23 January, Mr. El-Masri was handed over to the custody of a CIA rendition
AP1 (Applicant): team at the Skopje airport and was flown out of Macedonia on a CIA-operated aircraft."
AP1 (Applicant): In short, the statement provides conclusive confirmation by the person who actually authorized the operation that Mr. El-Masri's account is correct.
AP1 (Applicant): What other corroboration is before the Court?
AP1 (Applicant): In December of 2005, immediately after meeting with then-Secretary of State Condoleezza Rice, German Chancellor Angela Merkel told reporters that Rice admitted that the United States had made a mistake in abducting and detaining Mr. El-Masri in Afghanistan.
AP1 (Applicant): And Mr. El-Masri's description of his transfer to the CIA and rendition bears striking similarities
AP1 (Applicant): to what has since been disclosed about approved CIA procedures in other cases.
AP1 (Applicant): A CIA memo released in late 2004, after Mr. El-Masri first described what had happened
AP1 (Applicant): to him, makes clear that the method by which he was brought into U.S. custody at Skopje
AP1 (Applicant): airport was carefully designed to give rise to a state of what is called capture shock, with the goal of inducing learned helplessness and dependence.
AP1 (Applicant): The memo details many of the methods used against Mr. El-Masri, including shackling
AP1 (Applicant): during the flight and blindfolds, earmuffs and hoods.
AP1 (Applicant): Finally numerous reports in reputable international media have quoted unnamed Macedonian officials as admitting Macedonia's deliberate involvement in Mr. El-Masri's detention and rendition
AP1 (Applicant): as a favor to the United States.
AP1 (Applicant): In sum, the evidence of Macedonia's active complicity and involvement in the unlawful detention, disappearance and abuse of Mr. El-Masri is, we submit, overwhelming.
AP1 (Applicant): Now we will turn to the questions of first, why this case is properly before the Court, and secondly, the convention violations for which Macedonia is responsible.
AP1 (Applicant): And my colleague Mr. Pavley will address those issues.
Nicolas Bratza (JudgeP): Thank you, Mr. Goldson.
Nicolas Bratza (JudgeP): Then Mr. Pavli, please.
AP2 (Applicant): Thank you, Mr. President.
AP2 (Applicant): I will turn first to questions of admissibility, arguing in particular why this application was brought to Strasbourg in a timely fashion.
AP2 (Applicant): I will then summarize the applicant's submissions on the merits.
AP2 (Applicant): I'll not spend too much time on exhaustion of domestic remedies because the government does not seem to dispute that remedies were exhausted.
AP2 (Applicant): I'll turn then to the six-month rule.
AP2 (Applicant): In cases like this one, involving an ongoing duty to investigate, the six-month clock starts from the date when the applicant first became or ought to have become aware of circumstances that rendered the remedy ineffective.
AP2 (Applicant): In this case, the date was 24th of January 2009, the date when prosecutions for the offenses committed against Mr. El-Masri were statutorily barred in Macedonia.
AP2 (Applicant): On the 20th of July 2009, less than six months later, Mr. El-Masri filed an introductory letter
AP2 (Applicant): with the court.
AP2 (Applicant): Misconstruing this court's well-settled jurisprudence and misrepresenting the facts, the government suggests that the current application came to Strasbourg too late because, they say, the applicant ought to have known earlier that no effective investigation of his claims was likely or possible in Macedonia.
AP2 (Applicant): The government spent virtually their entire time of opening statement trying to make this argument.
AP2 (Applicant): And yet, the claim is spurious and unsupported by the case law.
AP2 (Applicant): In addressing timeliness, this court has identified a number of factors, of which three are most relevant here.
AP2 (Applicant): The complexity of the crimes at issue, the applicant's diligence, and the adequacy of the domestic investigation.
AP2 (Applicant): All three factors make clear that Mr. El-Masri
AP2 (Applicant): filed his application in a timely fashion.
AP2 (Applicant): The government just now claimed that there was no specific circumstances as a matter of the six-time limit law that would justify his actions.
AP2 (Applicant): And yet, that is a most peculiar claim to make under the circumstances of this case.
AP2 (Applicant): Complex crimes committed by state agents under the cloak of complete secrecy, disguise, and monolithic state protection, as in this case, often take many years to unravel.
AP2 (Applicant): This is all the more so, whereas here, the crimes were perpetrated as part of a multi-state conspiracy, which government actors have gone to great effort to cover up.
AP2 (Applicant): In one leading case, Varnava, to bring just one example, this court assumed jurisdiction over events going back some 15 years from the date of the filing of the application.
AP2 (Applicant): Adopting the position of the government, as argued here, would effectively guarantee impunity for all sorts of international crimes and gross human rights violations.
AP2 (Applicant): Turning to diligence, the government accuses Mr. El-Masri of remaining totally passive
AP2 (Applicant): and displaying no initiative.
AP2 (Applicant): But from the moment of his release to the present, Mr. El-Masri has done everything possible
AP2 (Applicant): to secure a legal redress.
AP2 (Applicant): Within days of returning to his hometown in Germany, he contacted a local lawyer and set in motion a criminal investigation by the German authorities with which he actively collaborated for several years.
AP2 (Applicant): The government claims that the applicant was doing nothing in 2005 or 2006 or 2007.
AP2 (Applicant): But in December 2005, his lawyers filed a case in the US federal court against the government of the United States, the country which he indeed considered principally responsible for his ordeal.
AP2 (Applicant): He spoke to countless reporters and others who cared to hear about his story.
AP2 (Applicant): And starting in January 2006, he began a multi-year collaboration with two European inquiries, the Fava and Mardi inquiries, that featured his case prominently in their successive report.
AP2 (Applicant): The government argues that these are not meant to exhaust domestic remedies.
AP2 (Applicant): And yet, under the case law, that is not a relevant point.
AP2 (Applicant): Under the case law, the applicant was entitled to expect and await the outcome of this series of international inquiries that could help his case.
AP2 (Applicant): From late 2007 to 2010, Mr. El-Masri and his legal team
AP2 (Applicant): filed freedom of information requests with Macedonian authorities, approached high-level witnesses in the country, and hired a specialized investigator, Mr. Simpson, to conduct two separate investigative trips
AP2 (Applicant): to Skopje and produce an extensive report.
AP2 (Applicant): These efforts produced real, novel evidence from local sources that has significantly strengthened the applicant's case.
AP2 (Applicant): As Mr. Simpson's report, the statement
AP2 (Applicant): of the former senior Macedonian official, and the freedom of information responses show.
AP2 (Applicant): So there was indeed a lot more than a single freedom of information request filed.
AP2 (Applicant): Finally, unlike in the Byram case, there was here in this case no ex-officio investigation underway in Macedonia with which the applicant could have collaborated prior to October 2008.
AP2 (Applicant): When finally the authorities did pursue a cursory inquiry in Macedonia in response to his criminal complaint, they terminated it within two months and hid that fact incredibly for almost two years.
AP2 (Applicant): To sum up, the applicant acted in full compliance with the six-month rule and its interpretation in the Byram and Varnava line of cases.
AP2 (Applicant): It was only in hindsight, with the benefit of what we know since late January 2009, and specifically in view of the way Macedonian prosecutors led the state of limitation lapse without any real investigation and without even bothering to inform the applicant that it became clear to the applicant that there was not going to be an effective local investigation.
AP2 (Applicant): We shall address the questions under the merits to which I turn now.
AP2 (Applicant): Macedonia has violated Mr. Elmasy's rights
AP2 (Applicant): under Articles 3, 5, 8, 10, and 13 of the Convention.
AP2 (Applicant): Our written submissions address these claims comprehensively.
AP2 (Applicant): So here I'd focus on the violations of Article 3 and 5.
AP2 (Applicant): Under Article 3, Macedonia is fully and directly responsible for the Article 3 violations that occurred from his detention at the Tabanovce border crossing to the moment the CIA rendition plane took off from Skopje Airport in the early hours of 24 January 2004.
AP2 (Applicant): In addition, the respondent is liable under the Tsuring doctrine for exposing the applicant to a real risk of treatment contrary to Article 3, which treatment, in fact, materialized under US custody.
AP2 (Applicant): At the Skopje Merak, held extrajudicially by Macedonian intelligence agents, Mr. Elmasy suffered prolonged anguish and stress
AP2 (Applicant): over his fate, forcing him to go on his first of three hunger strikes.
AP2 (Applicant): When he tried to leave, his captors put a gun to his head and threatened to shoot him on one occasion and pressured him repeatedly to admit links, false links, to various terrorist groups.
AP2 (Applicant): He was held incommunicado throughout this time.
AP2 (Applicant): That such a thing could happen in a European capital in 2004 is almost beyond belief.
AP2 (Applicant): Such treatment amounted to torture under Article 3 case law, cumulatively.
AP2 (Applicant): At Skopje Airport, he suffered at the ends of the CIA rendition team what was, by his own admission, the most vicious and humiliating mistreatment of the entire period.
AP2 (Applicant): This was the textbook capture shock treatment described clinically in CIA memos.
AP2 (Applicant): He was violently assaulted, stripped naked, forcefully tranquilized and sodomized, and subjected to total sensory deprivation and pay for street positions, all calculated to induce a state of learned helplessness and dependence.
AP2 (Applicant): While shackled hand and foot and with a bag over his head, he was dragged across the tarmac at the airport.
AP2 (Applicant): The violence was totally out of proportion to any threat he could have possibly posed.
AP2 (Applicant): The United Nations Committee Against Torture and the UN Human Rights Committee, in two similar cases against Sweden, Agiza and Algeria, found that capture shock treatment amounted to torture and a breach of Article 7 of the ICCPR.
AP2 (Applicant): Macedonian agents present at Skopje Airport violated the convention in two ways.
AP2 (Applicant): First, they failed to intervene to prevent ill treatment by non-state actors on Macedonian territory.
AP2 (Applicant): Secondly, by providing protection and concealment for the CIA plane, they facilitated such treatment contrary to Article 3.
AP2 (Applicant): Under the Tsering doctrine, the respondent is in addition responsible for exposing the applicant to a risk of treatment contrary to Article 3 upon a secret transfer to US custody in Afghanistan, even though substantial grounds existed at the relevant time for believing that such a risk was real.
AP2 (Applicant): The transfer was conducted in complete secrecy and deceit of the applicant and without any judicial scrutiny whatsoever, let alone the rigorous independent scrutiny of the risk required by the case law in view of the absolute character of the torture prohibition under the convention.
AP2 (Applicant): Mr. Elmasy himself was never told what fate awaited him
AP2 (Applicant): once on the rendition flight, and he was never given an opportunity to challenge the transfer.
AP2 (Applicant): He was treated as just a piece of human cargo with no rights.
AP2 (Applicant): This was a clear case of the so-called extraordinary rendition, defined by this court as the extrajudicial transfer of persons from one jurisdiction or state to another for the purposes of detention and interrogation outside the normal legal system where there is a real risk of torture or cruel, inhuman, or degrading treatment.
AP2 (Applicant): Can such a practice ever be consistent with Article 3?
AP2 (Applicant): This court recently answered that question in the following terms in the Babar Ahmad admissibility decision.
AP2 (Applicant): Extraordinary rendition by its deliberate circumvention of due process is anathema to the rule of law and the values protected by the convention.
AP2 (Applicant): It would be incompatible with the contracting state's obligation under the convention if it were to extradite or otherwise remove an individual from its territory in circumstances where that individual was at real risk of extraordinary rendition.
AP2 (Applicant): To do so would be to collude in the violation of the most basic rights guaranteed by the convention."
AP2 (Applicant): End quote.
AP2 (Applicant): Extraordinary rendition is now a euphemism for outsourcing torture.
AP2 (Applicant): There is no doubt on this record that the respondent knew and should have known that it was exposing Mr. Elmasri
AP2 (Applicant): to the risk of extraordinary rendition.
AP2 (Applicant): Aviation records show that the Macedonian authorities knew at least 47 hours ahead of the takeoff of that plane that it was heading from Skopje to Kabul, Afghanistan.
AP2 (Applicant): They even double-checked the destination while the plane waited on the runway for several hours.
AP2 (Applicant): Furthermore, it was common knowledge in early 2004 that significant detainee abuse in US custody had taken place since the end of 2001 in Afghanistan, in Guantanamo, and other places of secret or extraterritorial US detention.
AP2 (Applicant): There were multiple fact-finding reports and statements of concern from reputable media, but also the Red Cross and at least four separate United Nations bodies listed in our submissions detailing various forms of prescribed treatment, including abusive interrogation techniques, poor detention conditions, prolonged and communicado detention, and denial of basic habeas rights.
AP2 (Applicant): There is no indication that any diplomatic or other assurances were sought and obtained by Macedonia to mitigate the risk to Mr. Elmasri.