TrustHLT/LaCour huggingface dataset:
GR1 (Government): Even if the applicant relied on the obligation on the part of the Macedonian authorities to investigate his allegations with their own motion, the ineffectiveness of this avenue must have become clear to the applicant long before 6th of October 2008, the date when he lodged the criminal complaint.
GR1 (Government): First, due to the absence of any contact between him and the law enforcement authorities for almost five years.
GR1 (Government): Second, due to the fact that the Macedonian public prosecutor did not instigate ex-officio investigation, despite information becoming available to him from his German counterpart.
GR1 (Government): Namely, in the course of the German investigation, the competent public prosecutor requested with a letter of attorney from the Macedonian public prosecutor to take investigative steps regarding the applicant's allegations and to provide answers to the specific questions.
GR1 (Government): This was done on two occasions, in May 2005 and in November 2007.
GR1 (Government): Acting under Article 152, paragraph 2 of the criminal procedural code, the Macedonian prosecutor replied, providing information based on the inquiries conducted by the Ministry of Interior.
GR1 (Government): Mr. President, should the court accept the applicant's claim
GR1 (Government): that he did not pursue the remedies in respect of his grievances in due time because he considered that those remedies were ineffective, then the government is on the opinion that the applicant must be considered to have been aware of this situation long before October 2008.
GR1 (Government): If, as he alleges, he did not become aware of this situation until January 2009, the court should consider that that was due to his lack of diligence, which consisted in his own negligence.
GR1 (Government): The government sees no reason which could have forced the applicant to choose to wait so long before lodging the criminal complaint, save for his own belief that such an action would be meaningless.
GR1 (Government): The applicant has not been in any manner placed outside the protection of the national or international law during the relevant period.
GR1 (Government): Furthermore, he had direct domestic access to the investigative authorities, and throughout the entire period in question, he was assisted by legal representatives.
GR1 (Government): The arguments of the applicant that he did not speak the local language or that he did not have practical ability to travel to Macedonia and was not able to afford a local lawyer for several years should not be regarded as specific circumstances according to the case law of this court.
GR1 (Government): The argument of the applicant that he was entitled to await the outcome of the international inquiries should not be regarded as specific circumstance either, since those inquiries did not lead to any finding of fact which would be of relevance as to the existence of any available remedies in domestic law.
GR1 (Government): Ultimately, the international inquiry conducted by the Council of Europe was concluded in June 2006, and that is more than two years before the applicant lodged the criminal complaint in October 2008.
GR1 (Government): The inquiry conducted by the European Parliament was concluded in January 2007, and that is almost two years before the applicant lodged the criminal complaint.
GR1 (Government): The arrest warrants in the course of the proceedings in Germany were issued in January 2007, and that is almost two years before the applicant lodged the criminal complaint.
GR1 (Government): The procedure before the US courts was also finalized in January 2007.
GR1 (Government): The argument of the applicant that throughout the period in question he conducted his own evidence gathering is unsubstantiated.
GR1 (Government): The documents submitted in support of his application reveal that he made only one submission to the Macedonian authorities, and that is the request address to the Civil Aviation Authority in May 2008 after more than four years since the alleged incident occurred, and after more than one year after all international inquiries and investigations were concluded.
GR1 (Government): The request has been promptly replied.
GR1 (Government): Accordingly, this activity was neither time-consuming nor required considerable effort on the part of the applicant.
GR1 (Government): In line with the court's practice, the government concludes that no specific circumstances existed prior to submission of the application to the court, which might have prevented the applicant from observing the time limit laid down in Article 35, Paragraph 1 of the Convention.
GR1 (Government): with the passage of time, the applicant must have become aware of the lack of an effective official investigation, this becoming gradually apparent to him up until October 2008.
GR1 (Government): After almost five years since the alleged incident occurred, he decides to avail himself on a criminal complaint against unnamed personnel from the Ministry of Interior under Article 140, Paragraphs 1 and 3, and Article 142, Paragraph 1 of the Macedonian Penal Code.
GR1 (Government): The effectiveness, or better said, the ineffectiveness of this remedy pursued by the applicant derives from the legal provisions contained in the Code of Criminal Procedure.
GR1 (Government): Namely, according to the law, as long as the perpetrator renames unnamed, the complainant does not gain victim status, and he may not take over prosecution and appear as a subsidiary complainant.
GR1 (Government): Thus, the complainant is not entitled to challenge the dismissal decision.
GR1 (Government): Once a criminal complaint is submitted against an unnamed perpetrator, according to the Article 152 of the Code of Criminal Procedure, the public prosecutor requests the Ministry of Interior to gather necessary information and undertake other measures aimed at identifying the criminal offense and the perpetrator.
GR1 (Government): In the applicant's case, the Ministry of Interior has already acted twice upon request of the public prosecutor in 2006 and 2008 by virtue of Article 152.
GR1 (Government): The applicant and his representatives should have been aware that by availing to this criminal complaint as a remedy, the Ministry of Interior would be again requested to act upon.
GR1 (Government): The criminal complaint was dismissed by the principal public prosecutor in Skopje with decision dated 18th of December 2008 on the ground that there were no grounds for suspicion that the offenses were committed by an unnamed perpetrator due to the lack of sufficient evidence supporting the allegations of the complainant.
GR1 (Government): This decision was not forwarded to the applicant in line with the established practice of the Macedonian prosecution authorities and out of the reason that the applicant did not gain the victim status and he could not take over prosecution appearing as a subsidiary complainant.
GR1 (Government): Moreover, such decision cannot be challenged by an appeal because the dismissal as such does not mean that the obligation for the prosecutor to take further measures and activities regarding the identification of the perpetrators has ceased.
GR1 (Government): However, the applicant was not discharged from the duty to display due diligence and initiative in informing himself about the progress made in the investigation.
GR1 (Government): There is no information in the file to suggest that the applicant made any attempt to take part in the investigation or to obtain information about its progress.
GR1 (Government): It is striking that the applicant gained knowledge of the steps taken in the course of his criminal complaint from the written observations of the government submitted to this court in January 2011.
GR1 (Government): This affirms that the applicant did not undertake any initiative in informing himself about the progress made for more than two years after the complaint was lodged in October 2008.
GR1 (Government): One may arguably claim that if the applicant performed the requisite initiative after petitioning the principal public prosecutor, he could at least have become aware that the prosecutions for the offices allegedly committed against him were not statutory-beared in Macedonia on 24th of January 2009.
GR1 (Government): Namely, the applicant lodged a criminal complaint alleging offices under Article 140, Paragraph 3, in conjunction with Paragraph 1 and Article 142, Paragraph 1 of the Macedonian Penal Code.
GR1 (Government): However, the principal public prosecutor, as obvious from the dismissal decision, qualified the alleged offices under Article 140, Paragraph 3 and Article 142, Paragraph 2 of the Macedonian Penal Code.
GR1 (Government): According to the law enforced at the relevant time, the maximum punishment under Article 142, Paragraph 2 was 10 years.
GR1 (Government): Consequently, the prosecution becomes time-beared in 10 years, taken from the date of commission of the alleged offense under this article.
GR1 (Government): Finally, the applicant's negligence is also apparent from his conduct with regard to the civil procedure for damages initiated at the beginning of 2009.
GR1 (Government): Despite several court requests, the applicant for more than three years has not appeared before the domestic court to be examined as a party of the procedure.
GR1 (Government): the court can nevertheless consider and pass judgment on any alleged investigative failures by the authorities to pursue new leads.
GR1 (Government): In the applicant's view, there are two issues which can be perceived by the court as new leads triggering the respondent's state duty to investigate.
GR1 (Government): First, the criminal complaint against the unknown perpetrator of October 2008.
GR1 (Government): And second, the written statement of the witness deposited in March 2010 and submitted to this court a year later.
GR1 (Government): The government respectfully disagrees with this view.
GR1 (Government): The applicant submits that should the court find the application out of time at any point before October 2008, then in alternative, his criminal complaint should be considered as a revival of the Macedonian's duty to investigate, restarting the six-month clock under the Brecknell and Gassiak holdings.
GR1 (Government): However, the evidence presented in support of the criminal complaint of 2008 did not cast new light on the circumstances complained of and consequently did not lead to significant new developments which were not already brought into the public domain prior to that date.
GR1 (Government): On the contrary, the alleged new, compelling, and comprehensive evidence accompanying the criminal complaint of October 2008 consisted of, first, the Marti report, which was published and publicly available already in 2006.
GR1 (Government): Second, the Fava report, published and publicly available already in 2007.
GR1 (Government): Third, the declarations of the applicant himself and his lawyer, which were publicly known as early as 2004.
GR1 (Government): Fourth, the isotopic appraisal of the applicant's hair conducted in 2005 and explained in details in the Marti report.
GR1 (Government): And fifth, the flight logs for flight N313P, which were placed in public domain as early as January 2005 when the then leading audiovisual provider in Macedonia reported in Terralia that on 23rd of January 2004, an American Boeing landed in Skopje from Palma and two hours later left for Kabul, Afghanistan with only one passenger on the board.
GR1 (Government): The flight logs for flight N313P were also explained in details in the Marti report.
GR1 (Government): The government states that if the court considers, by any reason, that the applicant submitted new information which casts new light on the circumstances, then it should take into account that according to its established case law, not every assertion or allegation can trigger a fresh investigative obligation.
GR1 (Government): Only plausible or credible allegation, piece of evidence, or item of information relevant to the identification and eventual prosecution or punishment of the perpetrator may revive the obligation.
GR1 (Government): Such is not the case here.
GR1 (Government): In this respect, the government argues that the only plausible explanation for asserting to the criminal complaint by the applicant in October 2008, after almost five years since the alleged incident occurred, was the intention and interest of the applicant to try to satisfy the admissibility criteria of this court.
GR1 (Government): Mr. President, I will now turn to the issue
GR1 (Government): as to whether the written statement of the witness in this case could be perceived as a new lead capable of triggering fresh investigation.
GR1 (Government): The court is confronted with a rather unusual challenge to decide on the duty of the respondent government to pursue further investigations in a situation where the purported new written evidence is submitted exclusively to the court with strong conditions underlying it.
GR1 (Government): The witness puts under condition the use of his written statement in a sense that it can only be used for the purposes of this court deliberations and may not be used in pursuit of any investigations against him or other individuals.
GR1 (Government): Furthermore, the applicant and his representatives requested the government to oblige not to pursue any legal action or other measures of any kind against this witness in respect or as a result of his statement, thus preventing the prosecution and judiciary from acting upon it.
GR1 (Government): The issue that arises in front of this court is to whether and in what form the procedural obligation to investigate is revived.
GR1 (Government): And that is whether and in what form the information provided by the witness in his statement submitted exclusively to this court amounted to new evidence.
GR1 (Government): In this connection, first and foremost, the government invites the court to take into account that the government is effectively under obligation by virtue of Article 34 of the Convention not to interfere in any way with the applicant's right to petition the court, including in relation to the statement, by refraining from harassment in any fashion.
GR1 (Government): On the other hand, this court's practice has established that it cannot be accepted that positive obligation should arise each time an item of new evidence comes into play.
GR1 (Government): The court applies a particular thorough scrutiny when assessing the supposed quality of any further item of information received vis-a-vis the information which was already in public domain and presumably within applicant's knowledge.
GR1 (Government): It is clear from the court's case law that the new credible allegation, piece of evidence, or item of information must be relevant to the identification, prosecution, or punishment of the perpetrator of an unlawful act.
GR1 (Government): In the present case, it cannot be established that those requirements are met without assessment of the credibility of the source and the evidence in question.
GR1 (Government): This is particular due to the fact that the statement was presented in written form.
GR1 (Government): The government acknowledges that any investigative measures will be perceived by the applicant on one hand and by the witness on the other as harassment and contravention to his conditions expressly underlined in the statement, thus underpinning the principles established by Article 34 of the Convention.
GR1 (Government): In conclusion, taking into account Article 34 and especially the circumstances surrounding the written statement, which cumulatively create obstacles of law and facts, the authorities of the respondent state were not in a position to take any preliminary steps into assessment of the credibility of the witness's allegations, nor to take any further investigative measures.
GR1 (Government): we believe that we have demonstrated that the application in front of us today is to be declared inadmissible according to Article 35, paragraph 1 of the Convention.
GR1 (Government): It has been submitted outside of the six-month time limit due to the applicant's own negligence.
GR1 (Government): In addition, we believe that we have established that there are no new leads capable of reviving the investigation into the applicant's allegations.
GR1 (Government): Therefore, the court is unable to take cognizance of the merits of the present case by the fact that the complaints under Article 3, 5, and 8 are outside its temporal jurisdiction.
GR1 (Government): Since the court is not in position, ratione temporis, to examine whether the applicant had an arguable claim, there being no arguable claim in such circumstances, the applicant's submission in respect of Article 13 also fall outside the court's competence.
GR1 (Government): I thank you for your attention.
GR1 (Government): Happy Tuesday.
GR1 (Government): sends out an exceptional applause for you, Soon we shall have our turn.
GR1 (Government): Please enjoy, and enjoy the rest of Your Day.
GR1 (Government): If you have questions, leave them here below.
GR1 (Government): This is the end of today's hearing.
GR1 (Government): When we get back, President hooks, you'll hear some more of your comments.
GR1 (Government): We'll see you in trial in parallel, and you'll also hear from Ulsarah Geschlossmar, with whom we'll talk further today.
GR1 (Government): Please know that While in federal prison you will spend up to ten years in prison, making huge profits in your country.
GR1 (Government): We send our best wishes to the threshold sanctions statements firm.
GR1 (Government): change.
Nicolas Bratza (JudgeP): Thank you very much, Mr. Bogdanov.
Nicolas Bratza (JudgeP): Then I call Mr. Goldson, please.
AP1 (Applicant): Thank you, Mr. President, distinguished judges of this court.
AP1 (Applicant): This case concerns the practice of extraordinary rendition, the secret and extra-legal detention and transfer of a person to another country for interrogation and often torture.
AP1 (Applicant): As this court has recently confirmed, by its deliberate circumvention of due process, extraordinary rendition is anathema to the rule of law and the values protected by the Convention.
AP1 (Applicant): We have heard from the government that the applicant was negligent, exhibited a lack of diligence and hence this case is not properly before this court.
AP1 (Applicant): We would submit that if ever there was a case which belongs before this court, this is it.
AP1 (Applicant): For almost five months during the first half of 2004, Khaled El Masri, a German citizen, husband and father, traveling to Macedonia, was unlawfully detained and abused by Macedonian authorities, then turned over to the custody of the United States Central Intelligence Agency, who held and brutalized him in a secret jail in Afghanistan.
AP1 (Applicant): This chain of abduction, torture and disappearance all took place outside the law as part of a joint Macedonian-U.S. operation involving a demonstrably innocent man.
AP1 (Applicant): Following his release, Mr. El Masri sought legal redress wherever he could, in Germany,
AP1 (Applicant): in Macedonia, in the United States, but in each instance his efforts were stymied.
AP1 (Applicant): To this day, Macedonia has not acknowledged the truth of what happened, let alone apologized or provided compensation.
AP1 (Applicant): During one of the darkest days of his detention at the Salt Pit, the CIA prison outside Kabul where he was held, Mr. El Masri was warned by one of his interrogators, where you are
AP1 (Applicant): right now, there is no law, no rights, no one knows you are here and no one cares about you.
AP1 (Applicant): Mr. El Masri has now come before this Court to prove otherwise.
AP1 (Applicant): Your Honors, the government of Macedonia says in essence three things.
AP1 (Applicant): First, don't believe Khaled El Masri.
AP1 (Applicant): Second, don't consider this case on the merits.
AP1 (Applicant): And thirdly, if you do, don't find this government's actions in breach of the Convention.
AP1 (Applicant): In the course of our presentation this morning, we will address each of these in turn.
AP1 (Applicant): First, we'll explain the evidence which conclusively shows that Mr. El Masri was unlawfully held
AP1 (Applicant): incommunicado, disappeared and mistreated by the Macedonian government.
AP1 (Applicant): Second we'll explain why this case is properly before this Court and why the Court should issue a judgment on the merits.
AP1 (Applicant): And finally, we'll demonstrate that the government is responsible for specific violations of the European Convention.
AP1 (Applicant): I will address the facts.
AP1 (Applicant): Mr. Pavli will deal with admissibility and Convention breaches.
AP1 (Applicant): And together with Mr. Skilbeck and Madarski, we'll be pleased to answer any questions that
AP1 (Applicant): you may have.
AP1 (Applicant): So what does the evidence show?
AP1 (Applicant): This matter presents the Court with what at first glance appears to be a stark factual dispute, one which owing to the failure of the Macedonian authorities to carry out an effective investigation, this Court must resolve.
AP1 (Applicant): And yet when one looks more closely, there is really no dispute in the evidence before you.
AP1 (Applicant): For despite this Court's requests, the government of Macedonia has consistently refused to explain in any detail or provide support for its categorical assertions.
AP1 (Applicant): Rather it has stuck to what the Council of Europe's Marti inquiry called an obviously false account of its actions.
AP1 (Applicant): Macedonia contends that its officials' only contact with Mr. Elmasri was for five hours
AP1 (Applicant): on the evening of 31 December 2003 at the Tavanovca border crossing from Serbia.
AP1 (Applicant): Following this, Mr. Elmasri is said to have entered the country voluntarily.
AP1 (Applicant): According to the government, his stay for 23 days at the Skopsje Merak hotel was, quote, free and upon his own choice.
AP1 (Applicant): He was, they say, not detained during this time.
AP1 (Applicant): Absent any factual basis, the government suggests that Mr. Elmasri did not leave Macedonia in
AP1 (Applicant): a CIA plane, but rather that he walked across the border upon his own will into Kosovo.
AP1 (Applicant): But there is no evidence that Mr. Elmasri went to Kosovo.
AP1 (Applicant): In fact, there is not a shred of credible evidence to buttress the government's version of events.
AP1 (Applicant): Those few records the government has provided in support of its case prove, if anything, the opposite.
AP1 (Applicant): For example, a Ministry of Interior note of Mr. Elmasri's entry interview at the border
AP1 (Applicant): was prepared after the fact, although it was apparently disguised to appear as if it had been created contemporaneously.
AP1 (Applicant): Each of the official bodies that has investigated this case, the Marti inquiry, the Fava inquiry of the European Parliament, the German prosecutor, the Spanish prosecutor, the German Bundestag, all have rejected as utterly untenable the explanations offered by the Macedonian government.
AP1 (Applicant): By contrast, there is a wealth of evidence that Mr. Elmasri was the victim of an extra
AP1 (Applicant): legal rendition in which Macedonia colluded with the United States.
AP1 (Applicant): First there are Mr. Elmasri's own words.
AP1 (Applicant): In a sworn affidavit, Mr. Elmasri said that he went to Macedonia toward the end of 2003
AP1 (Applicant): because sadly he needed some time away from his family.
AP1 (Applicant): He had been having marital problems.
AP1 (Applicant): He decided to take a break, and Macedonia was attractive because it was nearby and inexpensive.
AP1 (Applicant): He purchased a round-trip bus ticket from Ulm, his hometown, to Skopje.
AP1 (Applicant): But when Mr. Elmasri's bus arrived at the Serbian-Macedonian border, his passport, alone
AP1 (Applicant): among all the passengers on the bus, was not returned.
AP1 (Applicant): Mr. Elmasri was told to leave the bus.
AP1 (Applicant): He was questioned by Macedonian officials at the border, and then he was taken to the Skopje Merak Hotel.