TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Further evidence pointed to concerted attempts to cover up these flights provided by Senator Marti in his 2007 report, which notes that the filing of false flight plans was done so that, and I quote, their actual movements would not be tracked or recorded, either live or after the fact, by the supranational air safety agency Eurocontrol.
AP2 (Applicant): The system of cover-up entailed several different steps involving both American and Polish collaborators."
AP2 (Applicant): Considering the totality of this evidence, it is clear that Abu Zubaydah was rendered out of Thailand on this flight and brought to Poland.
AP2 (Applicant): Number three, when asked by this court yesterday whether he could say beyond a reasonable doubt that Abu Zubaydah was imprisoned in Poland during the relevant period, replied categorically yes.
AP2 (Applicant): As also demonstrated in evidence given yesterday to this court, after over nine months of secret detention on the CIA black site in Poland, Abu Zubaydah was then transferred from Poland on 22 September 2003 on airplane number N313P, a plane that was at this time flying under official state status and will be familiar to this court from its role in the El Masry case.
AP2 (Applicant): The plane designated as N313P has been identified by the New York Times as operated by a CIA front company, while the company responsible for trip planning services, Jeppesen, was involved in a range of flights involving the transport of suspected terrorists.
AP2 (Applicant): We say that this evidence taken together clearly establishes that Abu Zubaydah was imprisoned on Polish territory.
AP2 (Applicant): The evidence we rely on is detailed, specific and consistent and concerns the entire period Abu Zubaydah spent in Poland as well as the circumstances surrounding that period.
AP2 (Applicant): This evidence has been uncovered in the face of determined efforts by state agents and state organizations to stymie any attempt at getting to the truth of Abu Zubaydah's case.
AP2 (Applicant): Poland has never provided an explanation of the events we have outlined in our memorial and which I have summarized today, instead it has relied on a secretive and stalled investigation to deflect attention away from this failure.
AP2 (Applicant): This court has consistently held that where facts lie within the state's control and the state fails to provide a satisfactory and convincing explanation of events, the court can draw inferences from that failure.
AP2 (Applicant): Similarly, adverse inferences may be drawn where the state has not provided any meaningful fact-finding process to clarify certain events and has failed to rebut the allegations made against it.
AP2 (Applicant): It is equally clear that Poland is and must be legally responsible for the torture that took place on its territory.
AP2 (Applicant): Poland had a positive obligation to investigate allegations of serious violations of human rights, to investigate whether anyone was held at the CIA secret detention site on its territory, and to ensure that no one was transferred from its territory to a risk of torture and flagrant denial of their fair trial rights.
AP2 (Applicant): It failed on every count.
AP2 (Applicant): Not only did it fail to take any steps to secure the applicant's convention rights, as this court heard yesterday, it actively engaged in ensuring he was able to exercise those rights.
AP2 (Applicant): The CIA secret prison could not have operated on Polish territory without the support and assistance of the Polish government.
AP2 (Applicant): Polish state agents facilitated the landing of planes at Chimney and the operation of the secret detention center close by.
AP2 (Applicant): It secured the area around the secret prison and ensured the CIA could operate free from interference on the site.
AP2 (Applicant): It worked from within state institutions such as PANSA, such as the Polish border guard, to ensure that normal procedures were not applied when CIA flights were arriving.
AP2 (Applicant): According to evidence set out in the Marti report of 2007, when the CIA flight was landing, the manager of the airbase was told by Polish officials to clear the runway of all other aircraft and vehicles and to ensure that all local staff were brought into the terminal building from the vicinity of the runway and remain at a distance from the aircraft.
AP2 (Applicant): The UN joint expert report, as well as the media reports outlined in our application, all state that Polish intelligence agents were put at the disposal of the CIA at the relevant time to provide open-ended assistance.
AP2 (Applicant): Poland's responsibility for the violations of Abu Zubaydah's Article 3, 5, 6 and 8 convention rights is clear and decisive.
AP2 (Applicant): As Expert 3 told this court yesterday, the nature of abuse by the CIA with respect to extraordinary rendition was public knowledge in 2002 and 2003.
AP2 (Applicant): This is well documented in our application using both Polish and international sources.
AP2 (Applicant): Yet Poland authorized, organized and facilitated the applicant's arrival at Chiminey Airbase in December 2002, facilitated his subsequent detention on Polish territory for over nine months, and facilitated his departure.
AP2 (Applicant): This court in El Mazri recognized that fear and anguish arising as a consequence of extraordinary rendition amounted to torture.
AP2 (Applicant): The court went on to equate rendition with enforced disappearance, a practice that other international bodies have consistently recognized as torture.
AP2 (Applicant): According to Senator Marti in his 2007 report, relying on multiple sources, Poland, and I quote, agreed to provide the premises in which these facilities were established the highest degrees of physical security and secrecy and steadfast guarantees of non-interference, end of quote.
AP2 (Applicant): It knowingly and intentionally ensured that the CIA could hold Abu Zubaydah in secret detention at the site for a prolonged period.
AP2 (Applicant): His detention by its very nature amounts to a violation of Article 3 rights.
AP2 (Applicant): Abu Zubaydah was detained as part of a rendition program deliberately designed to ensure disorientation and vulnerability.
AP2 (Applicant): He was denied access to a lawyer.
AP2 (Applicant): He was denied access to a court that challenged the lawfulness of his detention, and he was never told why or where he was being held.
AP2 (Applicant): His detention amounted to a breach of every one of the subcategories of Article 5.
AP2 (Applicant): Further, his family did not know where he was, and he was unable to make contact with them due to the absolute ban on communication with the outside world, a clear violation of his Article 8 rights.
AP2 (Applicant): Numerous state agents and state authorities at all levels of the Polish government have been involved in different ways in the secret prison system.
AP2 (Applicant): Expert 4 told this court yesterday, and I quote, Polish authorities had full knowledge of the illegality of this operation, its breach of the Polish Constitution.
AP2 (Applicant): It was clear that the Polish authorities cooperated to breach Polish law, European law, and habeas corpus, end of quote.
AP2 (Applicant): According to Senator Marti's 2007 report, the former President Wazniewski was, and I quote, the foremost national authority on the high-value detainee program.
AP2 (Applicant): Indeed, President Wazniewski confirmed this in a newspaper interview in Poland where he stated, and again I quote, of course, everything took place with my knowledge.
AP2 (Applicant): The President and the Prime Minister agreed to secret service cooperation with the Americans because that is what was needed.
AP2 (Applicant): The decision to cooperate with the CIA carried a risk that the Americans would use unacceptable methods, but if a CIA agent brutally treated a prisoner in a Marriott hotel in Warsaw, would you charge the directors of that hotel for the actions of that agent, end of quote?
AP2 (Applicant): This provides a telling insight into the Polish government's attitude to the CIA high-value detainee program and demonstrates at the highest level of government involvement in the operation of the secret prison and knowledge of the illegal methods used by the CIA.
AP2 (Applicant): This court has on numerous occasions given particular evidentiary weight to statements from government ministers or other high officials where, and I quote, they acknowledge facts or conduct that place the authorities in an unfavorable light.
AP2 (Applicant): They may then be construed as a form of admission, end of quote.
AP2 (Applicant): Other high-level officials have also been identified, and Senator Marty's 2007 report is, as having had first-hand knowledge of the operations of the secret detention program.
AP2 (Applicant): The conduct of such persons is an act for which the state is plainly responsible, even if that person exceeds authority or contravenes instructions.
AP2 (Applicant): This longstanding rule of customary international law is codified in Article 7 of the ILC's Articles on State Responsibility and has been consistently recognized by this court.
AP2 (Applicant): It is beyond dispute that Poland knew about the CIA's high-value detainee program on its territory and the real and immediate risk to which detainees were exposed.
AP2 (Applicant): As Expert 3 told this court yesterday when asked about the extent of Polish awareness, and I quote, Poland not only should have known, Poland in fact did know.
AP2 (Applicant): The direct involvement of Polish agents entails direct knowledge of the high-value detainee program.
AP2 (Applicant): Poland had a positive obligation to take all necessary, appropriate, and feasible measures to protect Abu Zubaydah from violations of his convention rights, even where those violations were committed by non-state agents.
AP2 (Applicant): It is demonstrably the case that there were steps reasonably available to Poland to prevent these violations and offer protection to Abu Zubaydah.
AP2 (Applicant): Not only did it fail to comply with its positive obligations, it actively aided, abetted, and facilitated his extraordinary rendition, secret and incommunicado detention and torture.
AP2 (Applicant): In addition, and consistent with a long line of authority developed by this court since Soering, the government is responsible for exposing the applicant to a real and substantial risk of torture through actively assisting in and facilitating his removal from its territory.
AP2 (Applicant): Abu Zubaydah's transfer out of Poland to Guantanamo proceeded with the full knowledge, acquiescence, and support of the Polish authorities.
AP2 (Applicant): Poland has been directly implicated in the removal of Abu Zubaydah to face the risk of torture, detention, and flagrant denial of his right to a fair trial by a series of credible and consistent accounts documenting in minute detail the nature and scope of the involvement of its state agents in the rendition process.
AP2 (Applicant): This court has consistently held that the removal of an individual from the territory of a contracting state engages the responsibility of that state, where there are substantial grounds for believing that the person concerned, if removed, faces a real risk of being subject to serious violations of the convention.
AP2 (Applicant): The Polish authorities had a positive obligation to ensure there was an independent and rigorous scrutiny of that risk prior to his transfer, and that he was allowed to challenge his removal before an independent judicial body.
AP2 (Applicant): Abu Zubaydah was denied these fundamental rights.
AP2 (Applicant): In fact, the Polish authorities actively and purposely assisted in his secret extrajudicial removal from the territory.
AP2 (Applicant): After leaving Poland, Abu Zubaydah continued to be subject to CIA secret detention elsewhere, ultimately being transferred to Guantanamo, where he is currently held in detention.
AP2 (Applicant): The Polish authorities knew or ought to have known of the real and substantial risk that he would continue to be held in essentially the same regime of detention to which he had been subject up to that point.
AP2 (Applicant): At the moment of his transfer, information about the treatment of detainees at Guantanamo Bay was common knowledge.
AP2 (Applicant): It was well known that detainees at Guantanamo would be at substantial risk of violations of their rights under Articles 3, 5, 6 and 8 of the Convention.
AP2 (Applicant): Subsequent and ongoing violations of the rights of Abu Zubaydah are a direct consequence of Poland's actions.
AP2 (Applicant): On this basis, Poland's responsibility under Articles 3, 5, 6 and 8 of the Convention is engaged in respect of the subsequent torture, detention and flagrant denial of justice.
AP2 (Applicant): The evidence presented to this Court, including the compelling evidence provided by the four experts yesterday, established beyond a reasonable doubt Polish responsibility through its acts and omissions for violations of Abu Zubaydah's human rights on its territory.
AP2 (Applicant): My colleague, Mr Jankowski, will now address the Court on Poland's criminal investigation, the lack of an effective remedy and the failure of the State to provide all necessary facilities to this Court.
Ineta Ziemele (JudgeP): Thank you, Mr. Hughes.
Ineta Ziemele (JudgeP): I call Mr. Jankowski.
AP3 (Applicant): Madam President, honorary members of the Court, all member states of the Council of Europe have a positive obligation under the Convention to investigate serious violation of human rights.
AP3 (Applicant): That obligation is triggered on authorities becoming aware of credible assertions of arguable claims in cases of forced disappearance, secret detention, and torture involving state agents.
AP3 (Applicant): That obligation is heightened.
AP3 (Applicant): The first credible assertion concerning the existence of a CIA black site in Poland were made public in the beginning of November 2005, followed by the, as expert number four described it yesterday, closed meeting of Polish parliament and government members.
AP3 (Applicant): Yet it wasn't until May 2008 that the Polish government decided to initiate an investigation in clear breach of the well-established Convention requirements of promptness and expedition.
AP3 (Applicant): In the meantime, there had been three comprehensive official reports from institutional bodies establishing that CIA black sites had operated on Polish territory.
AP3 (Applicant): This Court, in the Stamirov and Adersvie Russia at paragraph 89, found that the delay of even only a few months to open an investigation may amount to a, quote, delay that must have affected the effectiveness of the proceedings, end of quote, because that, quote, the passage of time would inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence would cast doubt on the good fate of the investigative efforts, end of quote.
AP3 (Applicant): The Court is entitled to ask, what was Poland doing for over two years prior to the initiation of the pretrial criminal investigation?
AP3 (Applicant): What has Poland been doing since 2008 once the investigation was initiated?
AP3 (Applicant): Why has the investigation continually been extended 10 times at last count?
AP3 (Applicant): Why were the two prosecutors removed and the investigation itself transferred from Warsaw to Krakow just before the victim lawyers were to get acquainted with additional bits, just bits, of the secret part of the investigation file?
AP3 (Applicant): And why?
AP3 (Applicant): Since then, for nearly two years now, no significant development in this investigation has been disclosed to the victims' representatives.
AP3 (Applicant): The Polish government has adopted a very simple approach to this case.
AP3 (Applicant): It asked this Court to find that this application is premature on the basis that it is currently carrying out an investigation into this allegation, an investigation that was opened only after years of mounting pressure and has continued for more than five years with no end in sight.
AP3 (Applicant): In this light, the most recent statement from government that the investigation, quote, continues to conduct preparatory proceedings is an extraordinary assertion.
AP3 (Applicant): The fact that the proceeding has been formally initiated and is declared to be in progress and subsequently prolonged does not mean that it's actually thorough, complex, conducted in the effective way and may assure protection of rights of the victims and bring effective remedies there, too.
AP3 (Applicant): Third evidence of its dissimulation can be found in the convenient position it has adopted that it cannot engage to the fullest extent with this case because to do so would be seen as an interference with the independence of the investigation.
AP3 (Applicant): Yet there are already serious concerns about its independence.
AP3 (Applicant): I will come back to that issue at the end of my speech.
AP3 (Applicant): The investigation has been delayed by the unexplained removal on two separate occasions of prosecutors assigned to lead the investigation.
AP3 (Applicant): Poland also relies on the failure of the US authorities to reply to its request for information to explain why the criminal investigation remains open.
AP3 (Applicant): However, there should be considerable evidence available to the criminal investigation now to allow it to proceed and eventually even now bring charges against at least some individuals responsible for crimes that were committed.
AP3 (Applicant): All the evidence we had yesterday leads us to that.
AP3 (Applicant): Polish government cannot hide behind the failure of the US government to take responsibility.
AP3 (Applicant): The criminal investigation in Poland into CIA black sites began in March 2008, has since stalled and remains pending.
AP3 (Applicant): Its terms of reference have never been published.
AP3 (Applicant): We do not know its exact scope.
AP3 (Applicant): And apart from publicly available speculations concerning one individual, a member of the intelligence services, no charges appear to have been brought against the individuals who committed the violations outlined in application.
AP3 (Applicant): We submit that the investigation is neither impartial nor tariff and is completely ineffective.
AP3 (Applicant): We further submit that the applicant has not been able to access the effective remedy within the meaning of Article 13 for this complaint under Article 3, 5, 6, and 8 of the convention.
AP3 (Applicant): An applicant is not required to exhaust domestic remedies that are ineffective.
AP3 (Applicant): While we have actively sought to pursue a remedy through the criminal investigation, it has become absolutely clear that this investigation is completely ineffective from the perspective of protection of the victim's rights.
AP3 (Applicant): We have encountered real difficulties in accessing case file.
AP3 (Applicant): We have filed a number of pleadings before prosecution offices, yet there has been no real progress in the case.
AP3 (Applicant): Moreover, the prosecution office did not provide us with any particularly formal written decision on the access to the classified of the case file.
AP3 (Applicant): Not having such decision results actually in the lack of the possibility to challenge that.
AP3 (Applicant): And as a result, factual lack of access to the classified part of the case file.
AP3 (Applicant): There is no domestic remedy to challenge such behavior.
AP3 (Applicant): The party is simply helpless.
AP3 (Applicant): We are unable to take part in the evidence-taking process, have not been informed of or allowed to participate in hearings of witnesses or experts, and have been consistently arbitrarily denied access to the complete file of the investigation.
AP3 (Applicant): There appear to have been no meaningful developments since the investigation was initiated.
AP3 (Applicant): On March 14, 2013, I filed a motion to the prosecutor office in Krakow, asking kindly for its permission to enclose my pleadings regarding this case to the application to this court.
AP3 (Applicant): Reply dated 4 October 2013 came to my office on 8 October 2013.
AP3 (Applicant): I'm sorry to invoke it, but it is just a tiny little example which illustrates the general feature of this investigation, showing how long does it take to obtain even minor formal decision in this proceedings.
AP3 (Applicant): The nature and scope of the criminal investigation, the ongoing delays, the publicly made suggestions of State interference, and the lack of any meaningful progress all clearly indicate that the government will not provide an effective remedy to the applicant and will not put right the violation complaint.
AP3 (Applicant): In relation to the alleged prematurity of this application, in relation to its unjustified delay, it should be stated that the complaint under the 2004 Act has already been filed in this reparatory proceedings and failed to produce any, in particular, the desired effect.
AP3 (Applicant): The complaint was filed by another party granted the victim status in the same proceeding.
AP3 (Applicant): It was based on the same factual state and proved to be completely ineffective.
AP3 (Applicant): It also blocked the case for over two months, as the whole case file needed to be moved to one of the courts in another end of Poland.
AP3 (Applicant): Should another victim apply this facade law and challenge the length of the investigation simply to fulfill the former requirement?
AP3 (Applicant): A formalistic answer would naturally be yes.
AP3 (Applicant): The one I kindly suggest is no, as this formally available domestic remedy, instead of serving its initial substantial goal of a victim, would not only be ineffective but actually counterproductive, causing additional, at least two or three months long, additional delay.
AP3 (Applicant): We kindly ask the Tribunal to observe the absolute ineffectiveness of this particular remedy in the case at hand.
AP3 (Applicant): In relation to the length of the proceedings, what we mainly challenge, however, is the investigation ineffectiveness in protecting applicants' rights.
AP3 (Applicant): The attitude of the State at the domestic level is reflected in its approach to these proceedings.
AP3 (Applicant): It has relied on a clearly ineffective investigation in order to refuse to engage with the substance of this case.
AP3 (Applicant): It has failed to address any of the questions posed by the Court in its reply to our memorial.
AP3 (Applicant): It has unsuccessfully sought to have today's hearing held behind closed doors.
AP3 (Applicant): And now it refuses to comply with this Court's request that it provide documents comprising the extract of the non-confidential part of the Krakow case file on the terms outlined by the Court.
AP3 (Applicant): Poland claims that it cannot provide a document to the Court on the basis that the Court's rules do not indicate the way in which fragile documents are protected.
AP3 (Applicant): It suggests alternative methods, such as but not limited to visiting its premises here in Strasbourg or attending the office of the general prosecutor in Warsaw.
AP3 (Applicant): There is no indication as to the length of the document, its content, or its complexity.
AP3 (Applicant): There is no explanation as to how the applicants' legal representatives are to consider this document and whether they will be allowed to make copies or take notes in order to better understand its input.
AP3 (Applicant): In short, the alternatives suggested by the State are value and unsatisfactory.
AP3 (Applicant): Notwithstanding this, the State's assertion that this Court is unable to protect sensitive information is made without foundation, and it's a clear attempt to frustrate the Court's efforts to access all relevant information to assist in its determination of its case.