TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): In conclusion, multiple strands of corroborating evidence considered together, supportive of the first 2009 media accounts citing CIA insiders, lead to the irresistible conclusion that, as we heard from the witnesses yesterday, Lithuania housed a black site.
AP1 (Applicant): It was set up by Lithuanian authorities and operated with their assistance by the CIA, and the applicant was rendered into that site between 2005 and 2006.
AP1 (Applicant): In the applicant's case against Poland, the court acknowledged the undeniable evidentiary challenges that arise in a case of this nature and how the facts of the case and the nature of the allegations condition the court's approach to evidence and proof.
AP1 (Applicant): The court has long been clear that the beyond reasonable doubt standard to which the Government is referred today does not have the meaning commonly associated with it in terms of criminal law and domestic systems, and the court must adopt an approach that is consistent with its purpose as a human rights court.
AP1 (Applicant): While the events in issue lie wholly or in large part within the exclusive knowledge of the authority, strong presumptions of fact may arise.
AP1 (Applicant): When prima facie evidence is presented, the burden of proof may rest on the authorities to provide a satisfactory and convincing explanation.
AP1 (Applicant): Proof may flow from the existence of sufficiently strong, clear and concordant inferences and presumptions of fact.
AP1 (Applicant): We would submit that the evidence in this case more than meets the relevant standard of prima facie evidence and creates, at a minimum, strong and concordant inferences of fact as to the secret detention of the applicant on Lithuanian soil.
AP1 (Applicant): We would say that the Government has still failed to provide any satisfactory explanation in the face of the overwhelming evidence that it established a black site on its territory.
AP1 (Applicant): Instead, it has engaged in a policy of denial and obfuscation, drawing categorical conclusions that there could not possibly have been detainees on its soil that are plainly at odds, we would suggest, with the evidence before it.
AP1 (Applicant): As the court in the Poland case noted, given the nature of the case, the fact that there is no document identifying Abu Zubaydah by name as a detainee on a specific flight or in a specific secret prison site is not surprising and cannot determine the outcome in this case.
AP1 (Applicant): As the evidence plainly shows, and as all three experts concluded, Abu Zubaydah was transferred into the Lithuanian black site on the relevant dates.
AP1 (Applicant): I will turn to question 2, concerning Lithuanian responsibility.
AP1 (Applicant): It is well established that the standard for responsibility under the convention is whether the state knew or should have known of a real risk of violations and failed to take reasonable measures to prevent the violations.
AP1 (Applicant): We would submit that Lithuanian responsibility on this point is plain.
AP1 (Applicant): Lithuania not only should have known, it in fact did know of the risk of violations.
AP1 (Applicant): It not only failed to prevent, but it actively helped to facilitate them.
AP1 (Applicant): Lithuania was the last European black site, with the applicants' detention taking place in 2005-06.
AP1 (Applicant): The court's judgment in Abu Zubaydah v. Poland found that already by 2002-04 there was widespread
AP1 (Applicant): generalised knowledge on secret unlawful detention and ill-treatment by the US, from which knowledge could be inferred.
AP1 (Applicant): There is simply no plausible room for doubt as to knowledge of the nature of the secret detention system in 2005-06.
AP1 (Applicant): This is clear from vast publicly available information, including extensive media coverage that reverberated around the globe, including in Lithuania, detailing the secret detention programme, specifically identifying eastern European black sites, the nature of the enhanced interrogation techniques and identifying Abu Zubaydah by name as one of the missing ghost prisoners.
AP1 (Applicant): The Marty Council of Europe inquiry was already under way when Abu Zubaydah was still in detention in Lithuania.
AP1 (Applicant): To suggest innocent ignorance on the part of the authorities as to what might have been going on in the secret site that they set up for the CIA by 2005 simply beggars belief.
AP1 (Applicant): In addition, evidence shows that high-level officials had specific and direct knowledge.
AP1 (Applicant): For example, the former President has publicly admitted being asked by the head of intelligence if Lithuania would be willing to bring accused terrorists into the country unofficially.
AP1 (Applicant): The head of intelligence in response noted that he inquired as to the President's position precisely on the basis that he knew what was going on in the world.
AP1 (Applicant): In another example, in 2005, while Abu Zubaydah was still detained in Lithuania, the Lithuanian government attended a NATO-EU meeting with Condoleezza Rice.
AP1 (Applicant): Evidence from the Polish judgment makes it clear that all member states knew about the techniques.
AP1 (Applicant): That was clear from the meeting.
AP1 (Applicant): In addition, multiple sources, including the Senate report, the Lithuanian parliamentary report and the press report, cite high-level members of government and intelligence agencies having approved the establishment of the CIA sites.
AP1 (Applicant): The Senate report makes it clear that millions of dollars were covertly transferred to show appreciation for that support.
AP1 (Applicant): As experts testified yesterday, although everyone would not have known—just as in all other host countries—some certainly did and approved.
AP1 (Applicant): It is beyond reasonable doubt that, by 2005, Lithuania knew of the real risk of violations on its territory.
AP1 (Applicant): Evidence shows that it took no measures to prevent, to monitor or even to inquire.
AP1 (Applicant): The Lithuanian parliamentary inquiry concluded that it was evident that the State Security Department did not seek to control the CIA's activities.
AP1 (Applicant): It did not monitor and record cargos brought in and out of the country.
AP1 (Applicant): It did not control the CIA's arrival and departure.
AP1 (Applicant): This lack of oversight is confirmed by the prosecution file.
AP1 (Applicant): The Lithuanian authorities not only failed to exercise due diligence to prevent violations, but they actively intervened to support and enable.
AP1 (Applicant): As the evidence shows—including evidence from the prosecution file—Lithuanian officials agreed to, purchased and helped to equip the CIA secret sites.
AP1 (Applicant): Lithuanian officials provided vital logistics and support at the site, keeping local inquiries at bay.
AP1 (Applicant): Lithuanian authorities intervened to ensure that normal oversight of CIA flights was lifted by the use of classified letters that ensured that neither planes, passengers nor cargo were monitored or inspected.
AP1 (Applicant): This was true specifically of the Rendishan flights in question.
AP1 (Applicant): Lithuania is responsible for the clear failure to protect persons on its territory from the most serious violations under the convention.
AP1 (Applicant): In terms of the nature of the violations for which it has responsibility, we have set out detail in this respect in our written submissions.
AP1 (Applicant): We would emphasise, as regards the applicant's treatment, that although, just as in the Poland case, we cannot present specific evidence of what happened to Abizabeda in Lithuania, there can be no doubt that the state is responsible for his torture.
AP1 (Applicant): At an absolute minimum, as the court found in the Abizabeda against Poland case, detainees would have been subject to the applicable standard conditions of detention at the relevant time—solitary confinement, shackling, exposure to bright light and loud noise on a constant basis—and the standard conditions of transfer—stripping, shaving, hooding, diapering and strapping down into painful, cramped positions at the relevant time.
AP1 (Applicant): By the time the applicant reached Lithuania, it is pertinent to note that he had already been subject to this standardised abuse for three years.
AP1 (Applicant): With the profound psychological toll and vulnerability that internal CIA documents recognise, prolonged exposure to such techniques was a factor.
AP1 (Applicant): Moreover, it is noted that the purpose of site violence was not only detention but, explicitly, interrogation, with all that that term entails in the context of the rendition programme.
AP1 (Applicant): Moreover, the court is urged to find that secret arbitrary detention amounts per se to torture, cruel and human-integrating treatment, and that the rendition programme entailed enforced disappearance of persons under international law.
AP1 (Applicant): The third question relates to the applicant's removal from Lithuania, which resulted in his rendition to further secret CIA detention in Afghanistan and, after several months, to Guantanamo Bay, where, as we know, he has been subject to arbitrary detention without charge or trial ever since.
AP1 (Applicant): In El Masry v Macedonia, the court found that material was already in the public domain when Khaled El Masry was transferred to Afghanistan in 2003.
AP1 (Applicant): That made clear the risks of US detention in Afghanistan and in Guantanamo Bay specifically.
AP1 (Applicant): Widespread awareness by 2003 of the risks of transfer to ongoing CIA detention was acknowledged in Abu Zubaydah v Poland.
AP1 (Applicant): There can be no doubt whatsoever that, when the applicant was transferred out of Lithuania in March 2006, the risks were real and apparent.
AP1 (Applicant): Rather than preventing the transfer in the face of those risks, Lithuania actively facilitated his removal, as the Parliamentary Committee and the prosecution files and other sources make clear, escorting the CIA and its cargo to the flights, ensuring that inspections were avoided and making it possible for the rendition flights to depart without any legal constraint or oversight.
AP1 (Applicant): Lithuania is responsible for the applicant's transfer in the face of those risks, and it shares responsibility for the ongoing, flagrant denial of justice, which flowed directly and foreseeably from that transfer.
AP1 (Applicant): As regards the fourth question, concerning whether Lithuania has conducted an effective investigation, we would submit categorically that it has not.
AP1 (Applicant): They have failed to meet any of the convention benchmarks of promptness, independence, thoroughness, effectiveness or transparency.
AP1 (Applicant): As regards promptness, it is 11 years since the applicant was detained on Lithuanian territory.
AP1 (Applicant): It is 11 years since media reports revealed secret CIA detention in eastern European sites, six years since reports addressed specifically Lithuanian responsibility and identified the applicant.
AP1 (Applicant): When specific reports came out in relation to Lithuania in 2009, the prosecutor waited half a year to open his investigation after express prompting of the Parliamentary Committee.
AP1 (Applicant): This caused the European Committee for the Prevention of Torture to question the promptness of the investigation even then.
AP1 (Applicant): Four years then passed from the closure of that investigation to the purported reopening of the investigation that was announced in January 2015.
AP1 (Applicant): During that four-year interim, there were consistent and pervasive calls for the investigation to be reopened, including from the applicant's representatives, NGOs such as Amnesty International, Human Rights Watch Redress, the Human Rights Monitoring Institute, the Constitution Project, the head of the Lithuanian Parliamentary Committee, Dick Marty, the European Parliament, the Human Rights Council, Special Rapporteur on Terrorism, the UN Committee against Torture and others.
AP1 (Applicant): The prosecutor was alerted to a growing body of evidence that was not encompassed in the original, very cursory investigation, but failed to follow leads.
AP1 (Applicant): This flatly contradicts the Government's claim that it was ready to relaunch an investigation as and when further evidence emerged.
AP1 (Applicant): The lack of thoroughness and effectiveness of the investigation is apparent in various ways.
AP1 (Applicant): It is apparent from the limited scope of the investigation.
AP1 (Applicant): An investigation in a case of this type must look at crimes that reflect the nature and gravity of the violations at the heart of the case—in this case, torture and mistreatment of persons in forced disappearance, for example.
AP1 (Applicant): However, public statements and information provided to the court suggest a much narrower framing that was limited previously to possible abuse of office offences and more recently perhaps to crimes of transfer.
AP1 (Applicant): One of the implications of the focus on less grave crimes is the suggestion that has been advanced by the prosecutor when closing the initial investigation that the crimes in question may be subject to statutes of limitations, which would also be in violation of convention obligations.
AP1 (Applicant): A thorough investigation should also embrace the full range of those who are potentially responsible, directly and indirectly.
AP1 (Applicant): In this case, there is nothing to suggest any intention or effort to investigate and hold to account the full range of Lithuanian and foreign US agents at all levels who have together engaged in this international criminal conspiracy.
AP1 (Applicant): Most notably, the lack of thoroughness and effectiveness is seen in the failure of the prosecutor's office to take the basic investigative steps that it has been called on to take for many years.
AP1 (Applicant): The information from the prosecution files suggests, for example, that there has not been an attempt to take testimony from key eyewitnesses, including local inhabitants of the area—from foreign officials, agents, contractors, psychologists, pilots, crew or brokers and interrogators at the heart of this case, several of whom have now publicly confessed to their involvement in Abbas Obeda's rendition and torture—or from witnesses at the highest levels of authority within Lithuanian government.
AP1 (Applicant): There has not been an investigation into key rendition flights, including one of those entering Lithuania from Morocco on the relevant dates.
AP1 (Applicant): Finally and critically, the convention's requirements of transparency and the essential element of public scrutiny have been flouted in this case.
AP1 (Applicant): The prosecutor's office has refused to respond or share information with the applicant, other victims or the public, or to co-operate adequately with international inquiries.
AP1 (Applicant): In line with the conclusions of the Committee against Torture, the process has been shielded by an excessive, overreaching approach to state secrecy.
AP1 (Applicant): Several formal investigations have been opened, but there has been no meaningful investigation to date.
AP1 (Applicant): The 2010 investigation was closed on the basis that there was no remaining doubt concerning detainees, although even the partial redacted summary version of the evidence that we have seen from the prosecutor's file makes it clear that the evidence supported the applicant's case and certainly could not plausibly justify closure.
AP1 (Applicant): Despite public statements on the purported reopening of the investigation, the state has notably provided no information in its written submissions on progress on that investigation, despite being asked by the court to do so explicitly and despite being permitted to present a summary investigative file to the court on a confidential basis.
AP1 (Applicant): The fruitless results of the Lithuanian investigation to date are regrettably consistent with the political commitments that were made by the Lithuanian Prime Minister at a joint press conference with the Secretary of State for Justice, Hillary Clinton, on 6 May 2010, at the exact time when the 2010 investigation was supposedly in full flight, to the effect that the Lithuanian involvement in the rendition programme is an issue that is closed in Lithuania.
AP1 (Applicant): Although the Government seeks to avoid the judgment of this court by claiming that it is once again investigating, information has long been available to the prosecutor's office that provided a solid basis for a thorough investigation and has categorically failed to meet its convention obligations.
AP1 (Applicant): The court's fifth and final question asks whether the applicant has had an effective remedy. The answer is no. The nature of appropriate and effective remedies is inherently linked
AP1 (Applicant): to the nature of the violations alleged and the circumstances of the case. A case involving
AP1 (Applicant): egregious crimes of torture and enforced disappearance requires a prompt, thorough and effective criminal investigation and accountability. It is a remarkable fact that, despite abundant
AP1 (Applicant): information as to individual responsibility for the applicant's torture, no one has been held to account. As the court noted in El Masry v Macedonia, citing the Council of Europe's
AP1 (Applicant): guidelines on impunity, impunity must be fought as a matter of justice for victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system. There was no meaningful criminal investigation in this case, and the answer to question 5
AP1 (Applicant): necessarily flows from the answer to question 4.
AP1 (Applicant): While criminal investigation is an indispensable part of an effective remedy under article 13 and one that is starkly neglected in this case, it is not the only dimension. In the
AP1 (Applicant): circumstances of the present case, the applicant was the victim of a programme purposefully designed to dehumanise and reduce people to instruments of intelligence value. In that
AP1 (Applicant): context, the applicant would emphasise the importance of recognition of the victim and acknowledgement of the breach, which, together with expressions of regret or apology, provide a recognised aspect of satisfaction and reparation for egregious crimes under international law.
AP1 (Applicant): The Lithuanian Government's approach, by contrast, has been one of denial. At various
AP1 (Applicant): stages of proceedings, it sought to deny knowledge of the existence of the applicant at all or of his right to bring this action before the court, because the US would not release his power of attorney. It has denied continually, increasingly implausibly, that there was any
AP1 (Applicant): shred of evidence consistent with Lithuanian responsibility. The failure to provide any
AP1 (Applicant): recognition or acknowledgement of the victim and its role in wrongdoing compound the original wrong and the dehumanisation of victims such as Abu Zubaydah.
AP1 (Applicant): Given the nature of the case, we would emphasise the importance of cessation of on-going violations and guarantees of non-repetition, which also recognise dimensions of the right to a remedy.
AP1 (Applicant): The Government should, we would submit, take all measures within its power to bring to an end on-going violations to which it directly contributed. Through its dismissiveness and
AP1 (Applicant): denial, the state has failed to engage in the process of reckoning with the past with a view to ensuring that lessons can be learned and violations prevented in the future.
AP1 (Applicant): Finally, the right to a remedy is closely linked to the right to truth, which the court has recognised as an inherent aspect. Where secrecy is an integral part of the victimisation,
AP1 (Applicant): as in extreme cases such as this of enforced disappearance, transparency and truth are particularly crucial aspects of remedy and reparation, and they are starkly neglected by the Lithuanian state's approach to date.
AP1 (Applicant): We would submit in respect of the right to remedy and in respect of the court's findings on just satisfaction that, although damages are an aspect of satisfaction, in a case such as this, victim recognition, truth and guarantees of non-repetition are also critical dimensions that should be reflected.
AP1 (Applicant): A decade after being secretly detained in Lithuania, Abizibeda sits today in solitary confinement in a prison cell in Guantanamo Bay. This court is urged to speak in its judgment
AP1 (Applicant): in the strongest terms to Lithuanian responsibility for the egregious violations of his rights under the European Convention.
Mirjana Lazarova Trajkovska (JudgeP): Thank you, Ms. Duffy.
Mirjana Lazarova Trajkovska (JudgeP): Now I call judges to ask questions.
Mirjana Lazarova Trajkovska (JudgeP): Judge Spano, the floor is yours.
Robert Spano (Judge): Thank you, Madam President.
Robert Spano (Judge): I have several questions that I would like to pose to the government and then one question to the applicant.
Robert Spano (Judge): And I would like the government to bear with me.
Robert Spano (Judge): I want to ask some question in relation to documents in the case and also in relation to the legal issues we are confronted with.
Robert Spano (Judge): As the government would appreciate, there are three main questions before the court in this case in light of our case law.
Robert Spano (Judge): The first question is, was a CIA detention center operating in Lithuania at the time in question?
Robert Spano (Judge): If so, was the applicant in this case detained there during that period?
Robert Spano (Judge): And if both of those questions are answered in the affirmative, can it be said and established that his detention and treatment in Lithuania can be attributed for convention purposes to the Lithuanian authorities?
Robert Spano (Judge): I want, as regards the first question, the allegation that a detention center was operational in Lithuania, may I ask the government to clarify three documents which have been submitted by the government in this case?
Robert Spano (Judge): The first one is document number 16.
Robert Spano (Judge): It is a declassified document.
Robert Spano (Judge): In this document, which is a resolution of 25 July 2002, there is a text which I would like clarification on.
Robert Spano (Judge): It states that the resolution in it initiates a file in case, and then there is a redacted part, necessity to find and arrange premises, redaction, for the purposes of extradition, bracket, transfer, of working secret intelligence collaborators, also to ensure their protection and living conditions.
Robert Spano (Judge): May I ask confirmation that the word extradition, this is a translation presented by the government, is the word extradition a literal translation of the Lithuanian term?
Robert Spano (Judge): And if that is the case, in what context can the word extradition be used as regard working secret intelligence collaborators?
Robert Spano (Judge): Please clarify that issue for the court if possible.
Robert Spano (Judge): I would also mention document number 17, which again talks about the extradition of secret intelligence collaborators.
Robert Spano (Judge): Please clarify if possible the use of the word extradition here in this context.
Robert Spano (Judge): I turn to document number 30, which is a part of the documents submitted by the government.
Robert Spano (Judge): This is a record of inspections of the premises in Antavilu of 4 June 2010.
Robert Spano (Judge): Could the government please explain why no pictures are presented to the court from inside this building in contrast with the inspection of another premises submitted to the court?
Robert Spano (Judge): In other words, there are only pictures of outside the perimeter.
Robert Spano (Judge): Please explain why no pictures are inside the building in question.
Robert Spano (Judge): My second question goes to the second issue before the court.