EUROPEAN COURT OF HUMAN RIGHTS 

COUR EUROPÉENNE DES DROITS DE L'HOMME 

GRAND CHAMBER 

CASE OF EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF 

MACEDONIA 

(Application no. 39630/09) 

JUDGMENT 

STRASBOURG 

13 December 2012 

This judgment is final but may be subject to editorial revision. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

TABLE OF CONTENTS 

PROCEDURE 1 

THE FACTS 3 

I. THE CIRCUMSTANCES OF THE CASE 3 

A. The applicant's version of events 3 

1. Travel to the former Yugoslav Republic of Macedonia 3 

2. Incommunicado detention in the hotel 4 

3. Transfer to Skopje Airport 4 

4. Handover to a CIA "rendition" team at Skopje Airport 4 

5. Flight from Skopje to Afghanistan 5 

6. Detention and interrogation in Afghanistan 5 

7. Disguised "reverse rendition" to Albania 6 

8. Arrival in Germany 7 

B. The position of the Government of the former Yugoslav Republic of 

Macedonia as regards the applicant's allegations 8 

1. The position of the respondent Government as noted in the reports 

adopted following certain international inquiries 8 

(a) Alleged secret detentions and unlawful inter-State transfers of 

detainees involving Council of Europe member States, Doc. 10957, 12 

June 2006 ("the 2006 Marty report") 8 

(b) Council of Europe, Report by the Secretary General under 

Article 52 of the Convention on the question of secret detention and 

transport of detainees suspected of terrorist acts (SG/Inf (2006) 5, 28 

February 2006) ." 10 

2. The version of events submitted by the respondent Government in the 

proceedings before the Court 11 

C. International inquiries relating to the applicant's case 12 

1. Parliamentary Assembly of the Council of Europe - "the Marty 

inquiry" 12 

(a) The 2006 Marty report 12 

(b) Secret detentions and illegal transfers of detainees involving 

Council of Europe member States: second report, Doc. 11302 rev., 11 

June 2007 ("the 2007 Marty report") 14 

2. The European Parliament: the Fava inquiry 15 

3. UN Human Rights Committee, Concluding Observations on the 

Former Yugoslav Republic of Macedonia, 3 April 2008, UN 

Doc. CCPR/C/MKD/CO/2 16 

4. The applicant's petition before the Inter-American Commission of 

Human Rights against the United States (US) 17 

D. Relevant proceedings before national authorities other than those of the 

respondent State 17 

I. Germany 17 

(a) Investigation by the German prosecuting authorities 17 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

(b) German parliamentary inquiry 17 

2. Legal action in the United States 18 

E. Proceedings taken in the former Yugoslav Republic of Macedonia 

regarding the applicant's alleged arrest, confinement and ill-treatment 19 

1. Proceedings before the Department for Control and Professional 

Standards within the Ministry of the Interior (DCPS) 19 

2. Criminal proceedings against unknown law-enforcement officials... 20 

3. Civil proceedings for damages 21 

F. Other evidence submitted to the Court 21 

1. Sworn witness statement of 4 March 2010 21 

2. Expert report on the applicant's case submitted by Mr J.G.S 23 

3. Declarations of the European Centre for Constitutional and Human 

Rights (ECCHR) 24 

4. WikiLeaks cables 24 

II. RELEVANT DOMESTIC LAW 24 

A. The Constitution of 1991 (Vcmae) 24 

B. Criminal Code {Kpueunen saKonuK) 24 

1. Time bar for criminal prosecution 24 

2. Running and suspension of the time bar 25 

3. Unlawful deprivation of liberty 25 

4. Torture 25 

5. Ill-treatment in the performance of official duties 25 

C. Criminal Procedure Act of 1997 {3aK0H sa KpueuHuama nocmanKa), as 

worded at the material time 25 

D. Obligations Act {3aK0H aa oÔJiueaifuoHume odnocu) 27 

III. RELEVANT INTERNATIONAL LAW AND OTHER PUBLIC 

MATERIAL 27 

A. International legal documents 27 

1. Vienna Convention on Consular Relations, done in Vienna on 

24 April 1963 and entered into force on 19 March 1967 27 

Article 36 27 

Communication and contact with nationals of the sending State 27 

2. International Covenant on Civil and Political Rights (ICCPR) 27 

Article 4 28 

Article 7 28 

Article 9 28 

3. International Convention for the Protection of All Persons fi-om 

Enforced Disappearance ("the CED") 28 

Article 1 28 

Article 2 29 

Article 3 29 

Article 4 29 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

4. UN High Commissioner for Human Rights, Manual on the Effective 

Investigation and Documentation of Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, 2001 29 

5. International Law Commission, 2001 Articles on Responsibility of 

States for Internationally Wrongfiil Acts 29 

Article 7 29 

Excess of authority or contravention of instructions 29 

Article 14 30 

Extensionin time of the breach of an international obligation 30 

Article 15 30 

Breach consisting of a composite act 30 

Article 16 30 

Aid or assistance in the commission of an internationally wrongful act 

30 

6. UN General Assembly, Report of the Special Rapporteur of the 

Commission on Human Rights on the question of torture and other cruel, 

inhuman or degrading treatment or punishment, 2 July 2002 (A/57/173) 

30 

7. Parliamentary Assembly of the Council of Europe, Resolution 1433 

on lawfulness of detentions by the United States in Guantanamo Bay, 

adopted on 26 April 2005 31 

8. Parliamentary Assembly of the Council of Europe, Resolution 1463 

on enforced disappearances, adopted on 3 October 2005 31 

9. UN General Assembly Resolution 60/148 on Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment, adopted on 

21 February 2006 31 

10. European Commission for Democracy through Law (Venice 

Commission), Opinion on the international legal obligations of Council 

of Europe Member States in respect of secret detention facilities and 

inter-state transport of prisoners (no. 363/2005, 17 March 2006) 32 

11. Report of the UN Special Rapporteur on the Promotion and 

Protection of Human Rights and Fundamental Freedoms while 

Countering Terrorism, A/HRC/lO/3,4 February 2009 32 

12. UN Human Rights Council, Resolutions 9/11 and 12/12: Right to the 

Truth, 24 September 2008 and 12 October 2009 33 

13. Council of Europe, Guidelines of the Committee of Ministers of the 

Council of Europe on eradicating impunity for serious human rights 

violations, 30 March 2011 33 

B. Relevant case-law of foreign jurisdictions and international bodies 34 

1. Court of Appeal of England and Wales (Civil Division), Abbasi and 

Another v. Secretary of State for Foreign and Commonwealth Affairs and 

Secretary of State for the Home Department, Case No: C/2002/0617A; 

0617B, 6 November 2002 34 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

2. United States Court of Appeals for the Ninth Circuit, Falen Gherebi v. 

George Walker Bush; Donald H. Rumsfeld, D.C. No. CV-03-01267-

AHM, 18 December 2003 34 

3. UN Committee against Torture, Agiza v. Sweden, Communication 

No 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), and UN Human 

Rights Committee, Alzery v. Sweden, UN Doc. 

CCPR/C/88/D/1416/2005(2006) 35 

C. Public sources highlighting concerns as to human rights violations 

allegedly occurring in US-run detention facilities in the aftermath of 11 

September 2001 36 

1. Relevant materials of international human-rights organisations 36 

(a) Statement of the UN High Commissioner for Human Rights on 

detention of Taliban and Al-Qaeda prisoners at the US Base in 

Guantanamo Bay, Cuba, 16 January 2002 36 

(b) Amnesty International, Memorandum to the US Government on 

the rights of people in US custody in Afghanistan and Guantanamo 

Bay, April 2002 36 

(c) Human Rights Watch, "United States, Presumption of Guilt: 

Human Rights Abuses of Post-September 11 Detainees", Vol. 14, No. 

4 (G), August 2002 36 

(d) Human Rights Watch, "United States: Reports of Torture of AlQaeda Suspects", 26 December 2002 37 

J (e) International Helsinki Federation for Human Rights, "Antiterrorism Measures, Security and Human Rights: Developments in 

Europe, Central Asia and North America in the Aftermath of 

September 11", Report, April 2003 37 

(f) Amnesty International Report 2003 - United States of America, 28 

May 2003 37 

(g) Amnesty International, "Unlawful detention of six men from 

Bosnia-Herzegovina in Guantanamo Bay", 29 May 2003 38 

(h) Anmesty International, "United States of America, The threat of a 

bad example: Undermining international standards as 'war on terror' 

detentions continue", 18 August 2003 38 

(i) Amnesty International, "Incommunicado detention/Fear of illtreatment", 20 August 2003 38 

(j) International Committee of the Red Cross, United States: ICRC 

President urges progress on detention-related issues, news release 

04/03, 16 January 2004 38 

(k) UN Working Group on Arbitrary Detention, Opinion No. 

29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United 

States of America, UN Doc. A/HRC/4/40/Add. 1 at 103 (2006) 39 

2. Other public documents 39 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

Central Intelligence Agency, "Memo to the Department of Justice 

Command Centre-Background Paper on CIA's combined use of 

interrogation techniques", 30 December 2004 39 

3. Media articles 40 

THE LAW 41 

I. THE GOVERNMENT'S PRELIMINARY OBJECTION OF NONCOMPLIANCE WITH THE SIX-MONTH RULE 41 

A. The parties' submissions 41 

1. The respondent Government 41 

2. The applicant 42 

B. The Court's assessment 43 

1. General principles established in the Court's case-law 43 

2. Application of the above principles in the present case 44 

(a) Whether a criminal complaint was a remedy to be used by the 

applicant 44 

(b) The starting point of the six-month time-limit 46 

(c) Conclusion 46 

IL THE COURT'S ASSESSMENT OF THE EVIDENCE AND 

ESTABLISHMENT OF THE FACTS 47 

A. The parties' submissions 47 

B. The Court's evaluation of the facts 47 

1. General principles 47 

2. Establishment of the facts in the present case 48 

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION.... 52 

A. The parties' submissions 52 

1. The applicant 52 

2. The respondent Government 53 

B. Third-party interveners 53 

1. The UN High Commissioner for Human Rights (UNHCHR) 53 

2. Interights 54 

3. Redress 55 

4. Joint submissions by Amnesty International (AI) and the International 

Commission of Jurists (ICJ) 55 

C. The Court's assessment 56 

1. Admissibility 56 

2. Merits 56 

(a) Procedural aspect of Article 3: lack of an effective investigation 56 

(i) General principles; 56 

(ii) Application of the above principles in the present case 57 

(b) Substantive aspects of Article 3 of the Convention 60 

(i) Ill-treatment in the hotel and at Skopje Airport 60 

(a) General principles 60 

(P) Application of the above principles in the present case 61 

Treatment in the hotel 62 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

Treatment at Skopje Airport 63 

(ii) Removal of the applicant 64 

(a) General principles 64 

(P) Application of the above principles in the present case 65 

iii) Conclusion 66 

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION.... 67 

A. The parties' submissions 68 

B. Third-party interveners 68 

C. The Court's assessment 69 

1. Admissibility 69 

2. Merits 69 

(a) General principles established in the Court's case law 69 

(b) Application of the above principles in the present case 70 

(i) The applicant's detention in Skopje 71 

(ii) The appHcant's subsequent detention 71 

(iii) Conclusion 72 

(iv) Procedural aspect of Article 5: lack of an effective investigation 

73 

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION .... 73 

A. The parties' submissions 73 

B. The Court's assessment 74 

1, Admissibility 74 

2. Merits 74 

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION.. 74 

A. The parties' submissions 75 

B. The Court's assessment 75 

1. Admissibility 75 

2. Merits 75 

(a) General principles established in the Court's case-law 75 

(b) Application of the above principles in the present case 76 

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 77 

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78 

A. Damage 78 

B. Costs and expenses 79 

C. Default interest 79 

OPERATIVE PART 79 

JOINT CONCURRING OPINION OF JUDGES TULKENS, SPIELMANN, 

SICILIANOS AND KELLER 82 

JOINT CONCURRING OPINION OF JUDGES CASADEVALL AND LOPEZ 

GUERRA 85 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 1 

In the case of El-Masri v. the former Yugoslav Republic of 

Macedonia, 

The European Court of Human Rights (Grand Chamber), sitting as a 

Committee composed of: 

Nicolas Bratza, President, 

Françoise Tulkens, 

Josep Casadevall, 

Dean Spielmann, 

Nina Vajic, 

Peer Lorenzen, 

Karel Jungwiert, 

Isabelle Berro-Lefèvre, 

KJianlar Hajiyev, 

Luis Lopez Guerra, 

Ledi Bianku, 

Içil Karakaç, 

Vincent A. de Gaetano, 

Julia Laffranque, 

Linos-Alexandre Sicilianos, 

Erik M0se, 

Helen KCWQTJudges, 

and Michael O'Boyle, Deputy Registrar, 

Having deliberated in private on 16 May and 24 October 2012, 

Delivers the following judgment, which was adopted on the 

last-mentioned date: 

PROCEDURE 

1. The case originated in an application (no. 39630/09) against the former 

Yugoslav Republic of Macedonia lodged with the Court under Article 34 of 

the Convention for the Protection of Human Rights and Fundamental 

Freedoms ("the Convention") by a German national, Mr Khaled El-Masri 

("the applicant"), on 20 July 2009. 

2. The applicant was represented by Mr J.A. Goldston, Mr D. Pavli and 

Mr R. Skilbeck, from the Open Society Justice Initiative ("OSJI") New 

York Office, and Mr F. Medarski, a Macedonian lawyer. The Macedonian 

Government ('"the Government") were represented by their Agent, 

Mr K. Bogdanov. 

3. The applicant alleged, in particular, that he had been subjected to a 

secret rendition operation, namely that agents of the respondent State had 

arrested him, held him incommunicado, questioned and ill-treated him, and 

handed him over at Skopje Airport to CIA agents who had transferred him, 
2 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTon a special CIA-operated flight, to a CIA-run secret detention facility in 

Afghanistan, where he had been ill-treated for over four months. The 

alleged ordeal lasted between 31 December 2003 and 29 May 2004, when 

the applicant returned to Germany. 

4. The application was allocated initially to the Fifth Section of the 

Court (Rule 52 § 1 of the Rules of Court). On 1 February 2011 the Court 

changed the composition of its Sections (Rule 25 § 1) and this case was 

assigned to the newly composed First Section (Rule 52 § 1). 

5. On 28 September 2010 the applicant's complaints imder Articles 3, 5, 

8 and 13 of the Convention were communicated to the Government. 

6. The German Government, who had been informed of their right to 

intervene in the proceedings, under Article 36 § 1 of the Convention, gave 

no indication that they wished to do so. 

7. Miijana Lazarova Trajkovska, the judge elected in respect of the 

former Yugoslav Republic of Macedonia, withdrew from sitting in the case 

(Rule 28). The respondent Government accordingly appointed Peer 

Lorenzen, the judge elected in respect of Denmark, to sit in her place 

(Article 26 § 4 of the Convention and Rule 29 § 1). 

8. On 24 January 20II a Chamber of the First Section, composed of the 

following judges: Nina Vajic, Peer Lorenzen, Elisabeth Steiner, Khanlar 

Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos and Erik Mese, 

assisted by S0ren Nielsen, Section Registrar, relinquished jurisdiction in 

favour of the Grand Chamber, none of the parties having objected to 

relinquishment (Article 30 of the Convention and Rule 72). 

9. The composition of the Grand Chamber was determined according to 

the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24, 

10. The applicant and the Government each filed written observations. In 

addition, third-party comments were received from the United Nations High 

Commissioner for Human Rights, Interights, Redress, the International 

Commission of Jurists and Amnesty International, which had been given 

leave by the President to intervene in the written procedure (Article 36 § 2 

of the Convention and Rule 44 § 2). 

11. The Court decided to dispense with an oral examination of Mr H.K., 

a witness proposed by the applicant. 

12. A hearing took place in public in the Human Rights Building, 

Strasbourg, on 16 May 2012 (Rule 59 § 3). 

13. There appeared before the Court: 

(a) for the Government 

Mr K. BOGDANOV, Agent, 

Ms D. DJONOVA, Ministry of Justice, 

Ms V. STANOJEVSKA, Ministry of Justice, 

Ms N. JOSIFOVA, Ministry of the Interior, Advisers; 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 3 

(b) for the applicant 

Mr J.A. GOLDSTON, Executive Director, 

Open Society Justice Initiative, 

Mr D. PAVLI, Counsel, 

Mr R. SKILBECK, 

Mr F. MEDARSKI, Advisers. 

14. The Court heard addresses by Mr Bogdanov, Mr Goldston and 

Mr Pavli, and also their replies to questions put by its members. 

THE FACTS 

I. THE CIRCUMSTANCES OF THE CASE 

15. The applicant was bom in 1963 and lives in Senden, Germany. 

A. The applicant's version of events 

16. In the application, the applicant referred to his declaration made on 

6 April 2006 for the purpose of the proceedings before the US District Court 

for the Eastern District of Virginia (see paragraphs 62 and 63 below). 

L Travel to the former Yugoslav Republic of Macedonia 

17. On 31 December 2003 the applicant boarded a bus in Ulm, 

Germany, with a view to visiting Skopje in order, as he stated, "to take a 

short vacation and some time off from a stressful home environment". At 

around 3 p.m. he arrived at the Serbian/Macedonian border crossing at 

Tabanovce. A suspicion arose as to the validity of his recently issued 

German passport. A border official checked his passport and asked him 

about the purpose of his trip and the length and location of his intended stay. 

A Macedonian entry stamp dated 31 December 2003 was affixed to his 

passport. On that occasion, his personal belongings were searched and he 

was questioned about possible ties with several Islamic organisations and 

groups. The interrogation ended at 10 p.m. Accompanied by men in civilian 

clothes who were armed, he was driven to a hotel, which later research 

indicated was the Skopski Merak hotel in Skopje ("the hotel"). Upon his 

return to Germany, the applicant recognised, through photographs available 

on the hotel's website, the hotel building, the room where allegedly he had 

been held and one of the waiters who had served him food during his 

detention in the hotel. 
4 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT2. Incommunicado detention in the hotel 

18. The applicant was taken to a room on the top floor of the hotel. 

During his detention at the hotel, he was watched by a team of nine men, 

who changed shift every six hours. Three of them were with him at all 

times, even when he was sleeping. He was interrogated repeatedly 

throughout the course of his detention. He was questioned in English 

despite his limited proficiency in that language. His requests to contact the 

German embassy were refiased. On one occasion, when he stated that he 

intended to leave, a gun was pointed at his head and he was threatened with 

being shot. After seven days of confinement, another official arrived and 

offered him a deal, namely that he would be sent back to Germany in return 

for a confession that he was a member of Al-Qaeda. 

19. On the thirteenth day of his confinement, the applicant commenced a 

hunger strike to protest against his continued unlawftil detention. He did not 

eat for the remaining ten days of his detention in the former Yugoslav 

Republic of Macedonia, A week after he had commenced his hunger strike, 

he was told that he would soon be transferred by air back to Germany. 

3. Transfer to Skopje Airport 

20. On 23 January 2004 at around 8 p.m., the applicant was filmed by a 

video camera and instructed to say that he had been treated well, that he had 

not been harmed in any way and that he would shortly be flown back to 

Germany. Handcuffed and blindfolded, he was put in a car and taken to 

Skopje Airport. 

4. Handover to a CIA "rendition " team at Skopje Airport 

21. Upon arrival, still handcuffed and blindfolded, he was initially 

placed in a chair, where he sat for one and a half hours. He was told that he 

would be taken into a room for a medical examination before being 

transferred to Germany. Then, two people violently pulled his arms back. 

On that occasion he was beaten severely from all sides. His clothes were 

sliced from his body with scissors or a knife. His underwear was forcibly 

removed. He was thrown to the floor, his hands were pulled back and a boot 

was placed on his back. He then felt a firm object being forced into his anus. 

As stated by the applicant's lawyers at the public hearing of 16 May 2012, 

of all the acts perpetrated against the applicant that had been the most 

degrading and shameftil. According to the applicant, a suppository was 

forcibly administered on that occasion. He was then pulled from the floor 

and dragged to a comer of the room, where his feet were tied together. His 

blindfold was removed. A flash went off and temporarily blinded him. 

When he recovered his sight, he saw seven or eight men dressed in black 

and wearing black ski masks. One of the men placed him in a nappy. He 

was then dressed in a dark blue short-sleeved tracksuit, A bag was placed 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 5 

over his head and a belt was put on him with chains attached to his wrists 

and ankles. The men put earmuffs and eye pads on him and blindfolded and 

hooded him. They bent him over, forcing his head down, and quickly 

marched him to a waiting aircraft, with the shackles cutting into his ankles. 

The aircraft was surrounded by armed Macedonian security guards. He had 

difficulty breathing because of the bag that covered his head. Once inside 

the aircraft, he was thrown to the floor face down and his legs and arms 

were spread-eagled and secured to the sides of the aircraft. During the flight 

he received two injections. An anaesthetic was also administered over his 

nose. He was mostly unconscious during the flight. A Macedonian exit 

stamp dated 23 January 2004 was affixed to the applicant's passport. 

22. According to the applicant, his pre-flight treatment at Skopje 

Airport, "most likely at the hands of the special CIA [United States Central 

Intelligence Agency] rendition team", was remarkably consistent with a 

recently disclosed CIA document describing the protocol for the so-called 

"capture shock" treatment (see paragraph 124 below). 

5. Flight from Skopje to Afghanistan 

23. Upon landing, the applicant disembarked. It was warmer outside 

than it had been in the former Yugoslav Republic of Macedonia, which was 

sufficient for him to conclude that he had not been returned to Germany. He 

deduced later that he was in Afghanistan and that he had been flown via 

Baghdad. 

d. Detention and interrogation in Afghanistan 

24. After landing in Afghanistan, the applicant was driven for about ten 

minutes, then dragged from the vehicle, slammed into the walls of a room, 

thrown to the floor, kicked and beaten. His head and neck were specifically 

targeted and stepped upon. He was left in a small, dirty, dark concrete cell. 

When he adjusted his eyes to the light, he saw that the walls were covered in 

Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. 

Although it was cold, he had been provided with only one dirty, militarystyle blanket and some old, torn clothes bundled into a thin pillow. Through 

a window at the top of the cell, he saw the red, setting sun. Later he 

understood that he had been transferred to a CIA-run facility which media 

reports have identified as the "Salt Pif, a brick factory north of the Kabul 

business district that was used by the CIA for detention and interrogation of 

some high-level terror suspects. 

25. During his confinement, he was interrogated on three or four 

occasions, each time by the same man, who spoke Arabic with a south 

Lebanese accent, and each time at night. His interrogations were 

accompanied by threats, insults, pushing and shouting. His repeated 
6 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTrequests to meet with a representative of the German Government were 

ignored. 

26. In March 2004 the applicant, together with several other inmates 

with whom he communicated through cell walls, commenced a hunger 

strike to protest about their continued confinement without charge. As a 

consequence of the conditions of his confinement and his hunger strike, the 

applicant's health deteriorated on a daily basis. He received no medical 

treatment during this time, although he had requested it on several 

occasions. 

27. On 10 April 2004, the thirty-seventh day of his hunger strike, 

hooded men entered his cell, pulled him from his bed and bound his hands 

and feet. They dragged him into the interrogation room, sat him on a chair 

and tied him to it. A feeding tube was then forced through his nose to his 

stomach and a liquid was poured through it. After this procedure, the 

applicant was given some canned food, as well as some books to read. 

28. Following his force-feeding, the applicant became extremely ill and 

suffered very severe pain. A doctor visited his cell in the middle of the night 

and administered medication, but he remained bedridden for several days. 

Around that time, the applicant felt what he believed to be a minor 

earthquake. In this connection, the applicant submitted the "List of 

significant earthquakes of the worid in 2004", issued by the US Geological 

Survey (USGS) on 6 October 2005. According to this document, there was 

one earthquake on 5 April 2004 in the Hindu-Kush Region, Afghanistan. 

29. On 16 May 2004 the applicant was visited by a German speaker who 

identified himself only as "Sam". The latter visited the applicant three more 

times prior to his release. 

30. On 21 May 2004 the applicant began his second hunger strike. 

7. Disguised ''reverse rendition " to Albania 

31. On 28 May 2004 the applicant, blindfolded and handcuffed, was led 

out of his cell and locked in what seemed to be a shipping container until he 

heard the sound of an aircraft arriving. On that occasion, he was handed the 

suitcase that had been taken from him in Skopje. He was told to change 

back into the clothes he had worn upon his arrival in the former Yugoslav 

Republic of Macedonia and was given two new T-shirts, one of which he 

put on. He was then taken to the waiting aircraft, wearing a blindfold and 

earmuffs, and was chained to his seat there. "Sam" accompanied him on the 

aircraft. He said that the plane would land in a European coimtry other than 

Germany, but that the applicant would eventually continue on to Germany. 

32. When the aircraft landed, the applicant, still blindfolded, was placed 

in the back seat of a vehicle. He was not told where he was. He was driven 

in the vehicle up and down mountains, on paved and unpaved roads. The 

applicant was aware of men getting out of the car and then of men getting 

in. All of the men had Slavic-sounding accents, but said very little. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 7 

Eventually, the vehicle was brought to a halt. He was taken from the car and 

his blindfold was removed. His captors gave him his belongings and 

passport, removed his handcuffs and directed him to walk down the path 

without turning back. It was dark and the road was deserted. He believed he 

would be shot in the back and left to die. He rounded a comer and came 

across three armed men. They immediately asked for his passport. They saw 

that his German passport had no visa in it and asked him why he was in 

Albania without legal permission. He replied that he had no idea where he 

was. He was told that he was near the Albanian borders with the former 

Yugoslav Republic of Macedonia and Serbia. The men led him to a small 

building with an Albanian flag and he was presented to a superior officer. 

The officer observed the applicant's long hair and long beard and told him 

that he looked like a terrorist. He was then driven to the Mother Teresa 

Airport in Tirana. He was guided through customs and immigration control 

without inspection and put on a plane to Frankfurt, Germany. An Albanian 

exit stamp was affixed to the applicant's passport. 

8. Arrival in Germany 

33. On 29 May 2004 at 8.40 a.m. the applicant arrived at Frankfurt 

International Airport. He was about eighteen kilograms lighter than when he 

had left Germany, his hair was long and unkempt and he had not shaved 

since his arrival in the former Yugoslav Republic of Macedonia. 

Immediately after arrival in Germany, the applicant met Mr M. Gnjidic, a 

lawyer practising in Ulm. 

34. In his written submissions, the applicant stated that he had not 

undergone any medical examination apart from the isotope analysis of his 

hair follicles (see paragraphs 56 and 57 below). At the public hearing, the 

applicant's lawyers specified that the results of some medical examinations 

carried out upon his return to Germany had been submitted by the German 

public prosecutor to the European Parliament's Fava inquiry (see 

paragraphs 47-51 below). However, those results had not been submitted to 

the Court since they had not been conclusive as to the presence of any 

physical injury, given the long time that had elapsed since the incident at 

Skopje Airport. Furthermore, the applicant stated that he had been subjected 

to sophisticated interrogation techniques and methods, which had been 

specifically designed not to leave any evidence of physical ill-treatment. 

35. The 2007 Marty report (see paragraph 46 below) noted that the 

applicant had asked for treatment at the treatment centre for torture victims 

in Neu-Ulm shortly after his return to Germany in 2004. However, it took 

until 2006 for Mr Gnjidic to obtain the required health-insurance ftmding 

agreement to start a course of limited treatment (seventy hours) at the 

centre, which had been considered insufficient both by Mr Gnjidic and by 

the therapist herself (see paragraph 296 of the 2007 Marty report). 
8 EL-MASRl V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT36. The applicant also submitted a written statement of 5 January 2009 

by Dr Katherine Porterfield, a senior psychologist at the Bellevue/NYU 

Program for Survivors of Torture, in which she had confirmed that the 

applicant had suffered from post-traumatic stress disorder and depression 

"most likely caused by his experience of capture and extensive maltreatment 

and abuse". Dr Porterfield's opinion was based on several phone calls and 

two follow-up discussions with the applicant. She also advised him to visit a 

clinician in his community with the requisite expertise to help him. The 

applicant did not comply with that instruction. 

B. The position of the Government of the former Yugoslav Republic 

of Macedonia as regards the applicant's allegations 

7. The position of the respondent Government as noted in the reports 

adopted following certain international inquiries 

(a) Alleged secret detentions and unlawful inter-State transfers of 

detainees involving Council of Europe member States, Doc, 

10957,12 June 2006 C'the 2006 Marty report**) 

37. On 13 December 2005 the President of the Parliamentary Assembly 

of the Council of Europe asked the Assembly's Committee on Legal Affairs 

and Human Rights to investigate allegations of "extraordinary renditions" in 

Europe. Senator Dick Marty of Switzerland was appointed as special 

rapporteur. On 12 June 2006 the Assembly published the 2006 Marty report. 

It set out, on the basis of meetings that took place between 27 and 29 April 

2006, the position of the Macedonian authorities regarding the applicant's 

case. It stated, inter alia: 

"3.1.3.1. The position of the authorities 

106. The 'official line' of the Macedonian Government was first contained in a letter 

from the Minister of Interior [name], to the Ambassador of the European Commission 

[his name] dated 27 December 2005. In its simplest form, it essentially contains four 

items of information 'according to police records': first, Mr El-Masri arrived by bus 

at the Macedonian border crossing of Tabanovce at 4 pm on 31 December 2003; 

second, he was interviewed by "" authorised police officials' who suspected 'possession 

of a falsified travel document'; third, approximately five hours later, Mr El-Masri 

'was allowed entrance' into Macedonia, apparently freely; and fourth, on 23 January 

2004, he left Macedonia over the border crossing of Blace into Kosovo ... 

108. The President of the Republic [name] set out a firm stance in the very first 

meeting with the European Parliament delegation, providing a strong disincentive to 

any official who may have wished to break ranks by expressing an independent 

viewpoint: 'Up to this moment, I would like to assure you that Ï have not come across 

any reason not to believe the official position of our Ministry of Interior. I have no 

additional comments or facts, from any side, to convince me that what has been 

established in the official report of our Ministry is not the truth. ' 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 9 

109. On Friday 28 April the official position was presented in far greater detail 

during a meeting with [name] who was Head of the UBK, Macedonia's main 

intelligence service, at the time of the El-Masri case. [He] stated that the UBK's 

'Department for Control and Professional Standards' had undertaken an investigation 

into the case and traced official records of all Mr El-Masri's contact with the 

Macedonian authorities. The further details as presented by [the Head of the UBK] are 

summarized as follows: 

Mr El-Masri arrived on the Macedonian border on 31 December 2003, New 

Year's Eve. The Ministry of Interior had intensified security for the festive period 

and was operating a higher state of alert around the possible criminal activity. In line 

with these more intense activities, bus passengers were being subjected to a 

thorough security check, including an examination of their identity documents. 

Upon examining Mr El-Masri's passport, the Macedonian border police developed 

certain suspicions and decided to 'detain him'. In order not to make the other 

passengers wait at the border, the bus was at this point allowed to continue its 

journey. 

The objective of holding Mr El-Masri was to conduct an interview with him, 

which (according to [the Head of the UBK]) was carried out in accordance with all 

applicable European standards. Members of the UBK, the security and counterintelligence service, are present at all border points in Macedonia as part of what is 

described as 'Integrated Border Management and Security'. UBK officials 

participated in the interview of Mr El-Masri. The officials enquired into Mr ElMasri's reasons for travelling into the country, where he intended to stay and 

whether he was carrying sufficient amounts of money. [The Head of the UBK] 

explained: '1 think these were all standard questions that are asked in the context of 

such a routine procedure - I don't think I need to go into further details'. 

At the same time, Macedonian officials undertook a preliminary visual 

examination of Mr El-Masri's travel documents. They suspected that the passport 

might be faked or forged - noting in particular that Mr El-Masri was bom in 

Kuwait, yet claimed to possess German citizenship. 

A further passport check was carried out against an Interpol database. The border 

point at Tabanovce is not linked to Interpol's network, so the information had to be 

transmitted to Skopje, from where an electronic request was made to the central 

Interpol database in Lyon. A UBK official in the Analytical Department apparently 

made this request using an electronic code, so the Macedonian authorities can 

produce no record of it. Mr El-Masri was made to wait on the border point while the 

Interpol search was carried out. 

When it was established that there existed no Interpol warrant against Mr El-Masri 

and no further grounds on which to hold him, he was released. He then left the 

border point at Tabanovce, although Macedonian officials were not able to describe 

how. Asked directly about this point in a separate meeting, the Minister of Interior 

[name] said: 'we're not able to tell you exactly what happened to him after he was 

released because it is not in our interest; after the person leaves the border 

crossing, we 're not in a position to know how he travelled further'. 

The Ministry of Interior subsequently established ... that Mr El-Masri had stayed at 

a hotel in Skopje called the 'Skopski Merak'. Mr El-Masri is said to have checked in 

on the evening of 31 December 2003 and registered in the Guest Book. He stayed 

for 23 nights, including daily breakfast, and checked out on 23 January 2004. 
10 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTThe Ministry then conducted a further check on all border crossings and 

discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left 

the territory of Macedonia over the border crossing at Blace, into the territory of 

Kosovo. When asked whether Mr El-Masri had received a stamp to indicate his 

departure by this means, [the Head of the UBK] answered: 'Normally there should 

be a stamp on the passport as you cross the border out of Macedonia, but I can 7 be 

sure. UNMIK [United Nations Administration Mission in Kosovo] is also present on 

the Kosovo border and is in charge of the protocol on that side ... My UBK 

colleague has just informed me that he has crossed the border at Blace twice in 

recent times and didn 7 receive a stamp on either occasion. ' 

116. What is not said in the official version is the fact that the Macedonian UBK 

routinely consults with the CIA on such matters (which, on a certain level, is quite 

comprehensible and logical). According to confidential information we received (of 

which we know the source), a full description of Mr El-Masri was transmitted to the 

CIA via its Bureau Chief in Skopje for an analysis ... did the person in question have 

contact with terrorist movements, in particular with Al Qaida? Based on the 

intelligence material about Khaled El-Masri in its possession - the content of which is 

not known to us - the CIA answered in the affirmative. The UBK, as the local partner 

organisation, was requested to assist in securing and detaining Mr El-Masri until he 

could be handed over to the CIA for transfer." 

(b) Council of Europe, Report by the Secretary General under 

Article 52 of the Convention on the question of secret detention 

and transport of detainees suspected of terrorist acts (SG/Inf 

(2006) 5, 28 February 2006) 

38. On 21 November 2005 the Secretary General of the Council of 

Europe invoked the procedure under Article 52 of the Convention with 

regard to reports of European collusion in secret rendition flights. Member 

States were required to provide a report on the controls provided in their 

internal law over acts by foreign agents in their jurisdiction, on legal 

safeguards to prevent unacknowledged deprivation of liberty, on legal and 

investigative responses to alleged infringements of Convention rights and 

on whether public officials who had allegedly been involved in acts or 

omissions leading to such deprivation of liberty of detainees had been or 

were being investigated. 

39. On 17 February and 3 April 2006 the respondent Government 

replied to this request. In the latter submission, the respondent Government 

stated their position as regards the applicant's case. They stated, inter alia: 

"... As far as the case of Mr Khaled El-Masri is concerned, we would like to inform 

you that this case was examined by the Ministry of Internal Affairs, and the 

information about it was sent to the representatives of the European Commission in 

the Republic of Macedonia, to the Director for Western Balkans in the DG 

[Directorate General] Enlargement of the European Commission in Brussels and to 

members of the European Parliament as eariy as June 2005. ... [T]he Ministry of 

Internal Affairs of the Republic of Macedonia informs that, based on the police 

records on entry and exit at the state border of the Republic of Macedonia, Mr Khaled 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 11 

El-Masri arrived, by bus, at the Tabanovce border crossing from the State Union of 

Serbia and Montenegro on 31 December 2003 at 4 p.m. presenting a German passport. 

Suspecting possession of a forged travel document, the competent police officers 

checked the document and interviewed Mr Khaled El-Masri at the border crossing. A 

check in the Interpol records was also carried out which showed that no international 

arrest warrant had been issued forMr El-Masri. Mr Khaled El-Masri was allowed to 

enter the Republic of Macedonia on 31 December 2003 at 8.57 p.m. According to the 

police records, Mr Khaled El-Masri left the Republic of Macedonia on 23 January 

2004 at the Blace border crossing to the State Union of Serbia and Montenegro (on 

the Kosovo section)." 

2. The version of events submitted by the respondent Government in the 

proceedings before the Court 

40. The Government confirmed their version of events as outlined above 

(see paragraphs 37 and 39 above). They denied that the applicant had been 

detained and ill-treated by State agents in the hotel, that he had been handed 

over to CIA agents, and that the latter had ill-treated him at Skopje Airport 

and transferred him to a CIA-run prison in Afghanistan. In their submission, 

the applicant had freely entered, stayed in and left the territory of the 

respondent State. The only contact with State agents had occurred on 31 

December 2003, on the occasion of his entry into the respondent State, 

when inquiries had been undertaken regarding the validity of his passport. 

There had been no other contact with State agents during his entire stay in 

the respondent State. The inquiries by the Ministry of the Interior 

demonstrated that the appHcant had stayed in the respondent State by his 

own choice and free will between 31 December 2003 and 23 January 2004, 

when he had freely left the State through the Blace border crossing. 

41. In support of their argument, they submitted a copy of the following 

documents: extracts from the official border-crossing records for Tabanovce 

and Blace; an extract from the hotel guest book in which the applicant had 

been registered as a guest occupying room number 11 between 31 

December 2003 and 22 January 2004, and two letters of February 2006 in 

which the hotel's manager, firstly, had communicated to the Ministry of the 

Interior the names of six persons who had been on duty in the hotel at the 

relevant time and, secondly, had denied that any person had ever stayed in 

the hotel involuntarily. It was ftirther specified that the person whose 

photograph was on the hotel's website (see paragraph 17 above) was Mr 

Z.G., who could be found in the hotel. They also produced a letter of 3 

February 2006 in which the Macedonian Ministry of Transport/Civil 

Aviation Administration had informed the Ministry of the Interior that on 23 

January 2004 a Boeing 737 aircraft flying from Raima, registered as flight 

no. N313P, had been given permission to land at Skopje Airport, that the 

same aircraft had received permission (at 10.30 p.m.) to take off on the 

same day to Kabul and that at 2.25 a.m. on 24 January 2004, permission had 

been given for that aircraft to fly to Baghdad. Furthermore, the Government 
12 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

filed a copy of the applicant's hotel bills which, according to them, he had 

paid in cash. Lastly, they provided a copy of a police record of the 

applicant's apprehension at the Tabanovce border crossing on 31 December 

2003. As specified in the record, the applicant had been held between 

4,30 p.m. and 9.30 p.m. The record does not state the reasons for his 

apprehension, but it contains an incomplete handwritten note that he was 

apprehended on the basis of "tel. no. 9106 of 8 December 2003". 

C. International inquiries relating to the applicant's case 

42. There have been a number of international inquiries into allegations 

of "extraordinary renditions" in Europe and the involvement of European 

Governments. The reports have referred to the applicant's case. 

7. Parliamentary Assembly of the Council of Europe - "the Marty 

inquiry " 

(a) The 2006 Marty report 

43. The 2006 Marty report (see paragraph 37 above) stated, inter alia: 

"A. Draft resolution 

7. The facts and information gathered to date, along with new factual patterns in the 

process of being uncovered, indicate that the key elements of this 'spider's web' have 

notably included: a worldwide network of secret detentions on CIA 'black sites' and 

in military or naval installations; the CIA's programme of'renditions', under which 

terrorist suspects are flown between States on civilian aircraft, outside of the scope of 

any legal protections, often to be handed over to States who customarily resort to 

degrading treatment and torture; and the use of military airbases and aircraft to 

transport detainees as human cargo to Guantanamo Bay in Cuba or to other detention 

centres ... 

11. Attempts to expose the true nature and extent of these unlawful operations have 

invariably faced obstruction or dismissal, from the United States and its European 

partners alike. The authorities of most Council of Europe member States have denied 

their participation, in many cases without actually having carried out any inquiries or 

serious investigations... 

C. Explanatory memorandum 

2.7.1. CIA methodology - how a detainee is treated during a rendition 

... Collectively, the cases in the report testily to the existence of an established 

modus operandi of rendition, put into practice by an elite, highly-trained and highlydisciplined group of CIA agents ... 

I I . Conclusion 

287. Whilst hard evidence, at least according to the strict meaning of the word, is 

still not forthcoming, a number of coherent and converging elements indicate that 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 13 

secret detention centres have indeed existed and unlawful inter-state transfers have 

taken place in Europe...." 

44. Skopje Airport was categorised in the 2006 Marty report as a "oneoff pick-up point", that is, a point from which one detainee or one group of 

detainees was picked up for rendition or linlawfril transfer, but not as part of 

a systemic occurrence. 

45. As to the applicant's case, the 2006 Marty report stated, inter alia: 

''3. Specific examples of documented renditions 

3.1. Khaled El-Masri 

92. We spoke for many hours with Khaled El-Masri, who also testified publicly 

before the Temporary Committee of the European Parliament, and we find credible 

his account of detention in Macedonia and Afghanistan for nearly five months. 

3.1.2. Elements of corroboration for Mr El-Masri^s account 

102. Mr El-Masri's account is borne out by numerous items of evidence, some of 

which cannot yet be made public because they have been declared secret, or because 

they are covered by the confidentiality of the investigation underway in the office of 

the Munich prosecuting authorities following Mr El-Masri's complaint of abduction. 

103. The items already in the public domain are cited in the afore-mentioned 

memorandum submitted to the Virginia court in which Mr El-Masri lodged his 

complaint: 

• Passport stamps confirming Mr El-Masri's entry to and exit from Macedonia, as 

well as exit from Albania, on the dates in question; 

• Scientific testing of Mr El-Masri's hair follicles, conducted pursuant to a German 

criminal investigation, that is consistent with Mr El-Masri's account that he spent 

time in a South-Asian country and was deprived of food for an extended period of 

time; 

• Other physical evidence, including Mr El-Masri's passport, the two t-shirts he 

was given by his American captors on departing from Afghanistan, his boarding 

pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed 

during his ordeal, all of which have been turned over to German prosecutors; 

• Aviation logs confirming that a Boeing business jet owned and operated by 

defendants in this case [a US-based corporation, Premier Executive Transportation 

Services, Inc., and operated by another US-based corporation, Aero Contractors 

Limited], then registered by the FAA [US Federal Aviation Administration] as 

N3I3P, took off from Palma, Majorca, Spain on January 23, 2004; landed at the 

Skopje Airport at 8:51 p.m. that evening; and left Skopje more than three hours 

later, flying to Baghdad and then on to Kabul, the Afghan capital [a database of 

aircraft movements, compiled on the basis of information obtained from various 

sources, was attached to the 2006 Marty report]; 

• Wimess accounts from other passengers on the bus from Germany to Macedonia, 

which confirm Mr El-Masri's account of his detention at the border; 

• Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, 

from which Mr El-Masri has identified both his actual room and a staff member who 

served him food; 
14 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT-

• Geological records that confirm Mr El-Masri's recollection of minor earthquakes 

during his detention in Afghanistan; 

• Evidence of the identity of 'Sam', whom Mr El-Masri has positively identified 

from photographs and a police line-up, and who media reports confirm is a German 

intelligence officer with links to foreign intelligence services; 

• Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were 

immediately recognizable to another rendition victim who was detained by the U.S. 

in Afghanistan; 

• Photographs taken immediately upon Mr El-Masri's return to Germany that are 

consistent with his account of weight loss and unkempt grooming. 

113. One could, with sufficient application, begin to tease out discrepancies in the 

official line. For example, the Ministry of Interior stated that 'the hotel owner should 

have the record of Mr El-Masri's bill', while the hotel owner responded to several 

inquiries, by telephone and in person, by saying that the record had been handed over 

to the Ministry of Interior. 

125. All these factual elements indicate that the CIA carried out a 'rendition' of 

Khaled El-Masri. The plane in question had finished transferring another detainee just 

two days earlier and the plane was still on the same 'rendition circuit'. The plane and 

its crew had spent the interim period at Palma de Mallorca, a popular CIA staging 

point. The physical and moral degradation to which Mr El-Masri was subjected before 

being forced aboard the plane in Macedonia corresponds with the CIA's systematic 

'rendition methodology' described earlier in this report. The destination of the flight 

carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic 

representation of the 'spider's web'. 

127. It is worth repeating that the analysis of all facts concerning this case points in 

favour of the credibility of El-Masri. Everything points in the direction that he was the 

victim of abduction and ill-treatment amounting to torture within the meaning of the 

term established by the case-law of the United Nations Committee against Torture ..." 

(b) Secret detentions and illegal transfers of detainees involving 

Council of Europe member States: second report, Doc. 11302 

rev,, 11 June 2007 (''the 2007Marty report*') 

46. In his report of 11 June 2007 Senator Marty stated, inter alia: 

"5. Some European governments have obstructed the search for the truth and are 

continuing to do so by invoking the concept of'state secrets'. Secrecy is invoked so as 

not to provide explanations to parliamentary bodies or to prevent judicial authorities 

from establishing the facts and prosecuting those guilty of offences ... The same 

approach led the authorities of'the former Yugoslav Republic of Macedonia' to hide 

the truth and give an obviously false account of the actions of its own national 

agencies and the CIA in carrying out the secret detention and rendition of Khaled ElMasri. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 15 

273. We believe we have now managed to retrace in detail Mr El-Masri's odyssey 

and to shed light on his return to Europe: if we, with neither the powers nor resources, 

were able to do so, why were the competent authorities unable to manage it? There is 

only one possible explanation: they are not interested in seeing the truth come out. 

275.... We were able to prove the involvement of the CIA in Mr El-Masri's transfer 

to Afghanistan by linking the flight that carried him there - on the aircraft N313P, 

flying from Skopje ('the former Yugoslav Republic of Macedonia') to Baghdad (Iraq) 

to Kabul (Afghanistan) on 24 January 2004 - to another known CIA detainee transfer 

on the same plane two days earlier, thus establishing the first 'rendition circuit'.... 

276. Upon Mr El-Masri's arrival in Afghanistan, he was taken to a CIA secret 

detention facility near Kabul and held in a 'small, filthy, concrete cell' for a period of 

over four months. During this period the CIA discovered that no charges could be 

brought against him and that his passport was genuine, but inexplicably kept Mr ElMasri in his squalid, solitary confinement for several weeks thereafter. 

279. Today I think I am in a position to reconstruct the circumstances of Mr ElMasri's return from Afghanistan: he was flown out of Kabul on 28 May 2004 on 

board a CÏA-chartered Gulfstream aircraft with the tail number N982RK to a military 

airbase in Albania called [Bezat-Kuçova] Aerodrome. 

314. The 'official version' of Mr El-Masri's involuntary stay in 'the former 

Yugoslav Republic of Macedonia' has definitely become utterly untenable ..." 

2. The European Parliament: the Fava inquiry 

47. On 18 January 2006 the European Parliament set up a Temporary 

Committee on Extraordinary Rendition and appointed Mr Claudio Fava as 

rapporteur with a mandate to investigate the alleged existence of CIA 

prisons in Europe. The Fava inquiry held 130 meetings and sent delegations 

to the former Yugoslav Republic of Macedonia, the United States, 

Germany, the United Kingdom, Romania, Poland and Portugal. 

48. It identified at least 1,245 flights operated by the CIA in European 

airspace between the end of 2001 and 2005. During its visit to the former 

Yugoslav Republic of Macedonia, the inquiry met with high-ranking 

officials. 

49. On 6 July 2006 the European Parliament adopted a Resolution on the 

alleged use of European countries by the CIA for the transportation and 

illegal detention of prisoners (2006/2027(INI)), P6_TA (2006)0316), which 

stated, inter alia: 

"19. [The European Parliament] condemns the abduction by the CIA of the German 

national, Khaled el Masri, who was held in Afghanistan from January to May 2004 

and subjected to degrading and inhuman treatment; notes further the suspicion - not 

yet allayed - that Khaled el Masri was illegally held before that date, from 

31 December 2003 to 23 January 2004, in the Former Yugoslav Republic of 

Macedonia and that he was transported from there to Afghanistan on 23-24 January 
16 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

2004; considers the measures that the Former Yugoslav Republic of Macedonia 

claims to have taken to investigate the matter to be inadequate ... 

42. Condemns the fact that the German national, Khalid El-Masri, was held illegally 

in Afghanistan for more than four months in 2004; deplores the reluctance of the 

authorities of the Former Yugoslav Republic of Macedonia to confirm that El-Masri 

was in Skopje and was probably being held there before his rendition to Afghanistan 

by CIA agents ..." 

50. On 30 January 2007 the final Report on the alleged use of European 

countries by the CIA for the transportation and illegal detention of prisoners 

(2006/2200 (INI)), doc. A6-0020/2007) was published. Noting the lack of 

thorough investigation by the respondent State, the report stated, inter alia: 

"136. [The European Parliament] condemns the extraordinary rendition of the 

German citizen Khaled El-Masri, abducted at the border-crossing Tabanovce in the 

Former Yugoslav Republic of Macedonia on 31 December 2003, illegally held in 

Skopje from 31 December 2003 to 23 January 2004 and then transported to 

Afghanistan on 23-24 January 2004, where he was held until May 2004 and subjected 

to degrading and inhuman treatment; 

138. Fully endorses the preliminary findings of Munich Public Prosecutor Martin 

Hotmann that there is no evidence on the basis of which to refute Khaled El-Masri's 

version of events;" 

51. The report also emphasised that "the concept of 'secret detention 

facility' includes not only prisons, but also places where somebody is held 

incommunicadof such as private apartments, police stations or hotel rooms, 

as in the case of Khaled El-Masri in Skopje". 

3. UN Human Rights Committee, Concluding Observations on the 

Former Yugoslav Republic of Macedonia, 3 April 2008, UN 

Doc. CCPR/C/MKD/CO/2 

52. In the course of the periodic review of the respondent State's 

compliance with the International Covenant on Civil and Political Rights 

conducted by the United Nations (UN) Human Rights Committee during its 

March-April 2008 session, the latter "noted the investigation undertaken by 

the State party and its denial of any involvement in the [applicant's] 

rendition notwithstanding the highly detailed allegations as well as the 

concerns [raised by the Marty and Fava inquiries]". The UN Human Rights 

Committee made the following recommendation: 

"14. ... the State party should consider undertaking a new and comprehensive 

investigation of the allegations made by Mr Khaled El-Masri. The investigation 

should take account of all available evidence and seek the cooperation of Mr El-Masri 

himself..." 

53. This recommendation was supported by the Commissioner for 

Human Rights of the Council of Europe in his report published on 

11 September 2008 (Council of Europe Commissioner for Human Rights, 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 17 

Thomas Hammarberg, "Report on visit to the former Yugoslav Republic of 

Macedonia, 25-29 February 2008"). 

4. The applicant's petition before the Inter-American Commission of 

Human Rights against the United States (US) 

54. On 9 April 2008 the applicant filed a petition with the InterAmerican Commission on Human Rights. On 23 August 2009 the 

Commission transmitted the petition to the US Government for comments. 

No ftirther information has been provided in respect of these proceedings. 

D. Relevant proceedings before national authorities other than those 

of the respondent State 

/. Germany 

(a) Investigation by the German prosecuting authorities 

55. On an unspecified date in 2004 the Munich public prosecutor's 

office opened an investigation into the applicant's allegations that he had 

been unlawfully abducted, detained, physically and psychologically abused 

and interrogated in the former Yugoslav Republic of Macedonia and 

Afghanistan. According to the applicant, a number of investigative steps 

were taken, including an examination of eyewitnesses who confirmed that 

the applicant had travelled to the former Yugoslav Republic of Macedonia 

by bus at the end of 2003 and that he had been detained shortly after 

entering that State. 

56. Furthermore, a radioactive isotope analysis of the applicant's hair 

was carried out. An expert report of 17 January 2005 stated, inter alia: 

"... it is very likely that the changes observed in the enclosed isotopic signatures [of 

the applicant's hair] indeed correspond to [the applicant's] statements ..." 

57. According to the First Committee of hiquiry of the German 

Bundestag (see below), the radioisotope analysis also confirmed that the 

applicant had undergone two hunger strikes. 

58. On 31 January 2007 the Munich public prosecutor issued arrest 

warrants for thirteen CIA agents on account of their involvement in the 

applicant's alleged rendition. The names of the people sought were not 

made public. The identities of the CIA agents were allegedly given to the 

German prosecutor by the Spanish authorities, which had uncovered them in 

the course of their investigation into the use of Spanish airports by the CIA. 

(b) German parliamentary inquiry 

59. On 7 April 2006 the German Bundestag (Federal Parliament) 

appointed the First Committee of Inquiry of the Sixteenth Legislative Period 
18 EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

("the Committee of Inquiry") to review the activities of the secret services. 

Over a period of investigation of three years, the Committee of Inquiry held 

a total of 124 sessions, seven areas of investigation were addressed and a 

total of 141 witnesses were heard, including the applicant. The findings of 

the Committee of Inquiry were made public on 18 June 2009. 

60. The Committee of Inquiry's report, which runs altogether to 1,430 

pages, stated, inter alia: 

"... Khaled El-Masri's report on his imprisonment in Macedonia and in Afghanistan 

is credible as to the core facts of his detention in Macedonia and his transfer to 

Afghanistan, as well as his confinement there by United States forces. Doubts remain, 

however, about some specific aspects of his account. 

The police investigations conducted by Swabian law-enforcement authorities and 

supported by the BKA [Bundeskriminalamt - German Federal Criminal Police] 

reaffirm Mr El-Masri's account. His trip to Macedonia on 31 December 2003 was 

corroborated by wimesses. El-Masri's account of the transfer from Macedonia to 

Afghanistan by United States forces is consistent with subsequent reports from other 

victims of the excesses of the *war on terror' by the United States government at the 

time. The recorded movement of an American Boeing 737 of the presumed CIA 

airline 'Aero-Contractors' that flew from Majorca to Skopje on 23 January 2004 and 

continued on to Kabul, matches the temporal information that Mr El-Masri provided 

on the duration of his confinement at a Macedonian hotel... 

All this supports the Committee's profound doubts about the official Macedonian 

version of the events ... The Macedonian Government continue to deny his detention 

at the hotel and his transfer to Afghanistan, calling this a defamatory media campaign. 

This official account of the events by Macedonia is clearly incorrect. Rather, it must 

be concluded that convincing evidence exists for El-Masri's account of the course of 

his arrest and transfer outside the country ..." (p. 353) 

61. According to the report, doubts remained about the actual purpose of 

the applicant's trip to Skopje and significant discrepancies were noted in his 

statements concerning his questioning in the former Yugoslav Republic of 

Macedonia and Afghanistan, in particular his suspicion as to the German 

background of "Sam". 

2. Legal action in the United States 

62. On 6 December 2005 the American Civil Liberties Union (ACLU) 

filed a claim on behalf of the applicant in the United States District Court 

for the Eastern District of Virginia against a number of defendants including 

the former CIA director George Tenet and certain unknown CIA agents. 

The claim alleged that the applicant had been deprived of his liberty in the 

absence of legal process and included a claim under the Alien Tort Statute 

(ATS) for violations of international legal norms prohibiting prolonged 

arbitrary detention and cruel, inhuman or degrading treatment. 

63. In May 2006 the District Court dismissed the applicant's claim, 

finding that the US Government had validly asserted the State secrets 

privilege. The District Court held that the State's interest in preserving State 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 19 

secrets outweighed the applicant's individual interest in justice. That 

decision was confirmed on appeal by the United States Court of Appeals for 

the Fourth Circuit. In October 2007 the Supreme Court refiised to review 

the case. 

E. Proceedings taken in the former Yugoslav Republic of Macedonia 

regarding the applicant's alleged arrest, confînement and illtreatment 

7. Proceedings before the Department for Control and Professional 

Standards within the Ministry of the Interior (DCPS) 

64. In 2005 an internal inquiry was carried out into the applicant's 

claims by the DCPS within the Ministry of the Interior. The applicant was 

not invited to produce any evidence before the DCPS, nor was he informed 

of the outcome of the investigation. The results of this inquiry were not 

communicated to him, but to the representatives of the European Union in 

the respondent State (see paragraph 39 above). 

65. After having been given notice of the instant case, the Government 

submitted a copy of two reports issued on 20 March 2006 and 10 April 2008 

by the DCPS. Both reports were drawn up at the request of the Public 

Prosecutor's Department of Organised Crime and Corruption, which had 

acted on two separate legal assistance requests, dated 9 May 2005 and 

13 November 2007 respecfively, from the Munich public prosecutor 

investigating the applicant's criminal complaint in Germany. These reports 

reiterated the Government's version of events as described above. They 

specified that the applicant, after having arrived at the Tabanovce border 

crossing on 31 December 2003, had been held between 4.30 p.m. and 

9.30 p.m. in the official border premises and interviewed by the Macedonian 

police in connection with the alleged possession of a forged passport. After 

he had been released, he had stayed in the hotel, occupying room number 

11. He had paid the hotel bill and had left the respondent State, as a 

pedestrian, at 6.20 p.m. on 23 January 2004 at the Blace border crossing. It 

was further specified that the then Head of the UBK, which had operated 

within the Ministry of the Interior, had never been rewarded by any foreign 

agency, including the CIA. It was concluded that no one, including the 

applicant, had ever been held in the hotel and interrogated by agents of the 

Ministry of the Interior. 

66. In the course of these inquiries, the Ministry of the Interior submitted 

to the Macedonian public prosecutor the documents indicated above (see 

paragraph 41 above). 
20 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT2. Criminal proceedings against unknown law-enforcement officials 

67. On 6 October 2008 the applicant, through his legal representative 

Mr F. Medarski, lodged a criminal complaint with the Skopje public 

prosecutor's office against unidentified law-enforcement officials on 

account of his unlawftil detention and abduction, offences punishable under 

Article 140 of the Criminal Code. The complaint also alleged the crime of 

torture or other inhuman or degrading treatment or punishment, punishable 

under Articles 142 and 143 of the Criminal Code. In support of his 

complaint, the applicant submitted a copy of his affidavit prepared for the 

purposes of his lawsuit in the United States and produced the following 

evidence: a copy of his passport; relevant extracts from the 2006 and 2007 

Marty reports and the Fava inquiry; a copy of the aviation logs; a letter fi^om 

the Skopje Airport authorities issued on 18 June 2008 (in reply to the 

applicant's request for information) attesting that on 23 January 2004 a 

Boeing 737 aircraft registered by the FAA as N313P had landed at Skopje 

Airport without any passengers and that it had taken off on 24 January 2004 

carrying only one passenger; a translated version of the expert report on the 

applicant's hair; and sketches of the hotel room where the applicant had 

allegedly been detained. The photograph of the waiter who had allegedly 

served the applicant with food was not included in the submission to the 

public prosecutor because "the applicant had been unable to preserve a copy 

at the relevant time and the photograph was no longer available on the 

hotel's website". The applicant further complained that, while being held at 

the Tabanovce border crossing and in the Skopski Merak hotel, he had been 

denied the right to contact his family, a lawyer of his own choosing or a 

representative of the German Embassy. 

68. On 13 October 2008 the public prosecutor requested the Ministry of 

the Interior to investigate the applicant's allegations, and in particular to 

provide concrete information regarding the events at the Tabanovce bordercrossing point, the hotel and Skopje Airport in order to establish the truth. 

69. On 7 November 2008 the DCPS confirmed its previous findings and 

reiterated that all documents had already been submitted to the public 

prosecutor's office (see paragraphs 41 and 65 above). 

70. On 18 December 2008 the public prosecutor rejected the applicant's 

criminal complaint as unsubstantiated. Relying on the information 

submitted by the DCPS, the public prosecutor found no evidence that 

unidentified officials had committed the alleged crimes. According to the 

applicant, he was notified of that decision on 22 November 2010. 

71. The Government confirmed that during the investigation the public 

prosecutor had not taken oral evidence from the applicant and the personnel 

working in the hotel at the relevant time. Furthermore, no steps had been 

taken to establish the purpose of the landing of the aircraft mentioned in the 

letter issued by Skopje Airport authorities on 18 June 2008 and attached to 

the applicant's criminal complaint (see paragraph 67 above). In the 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 21 

Government's view, this was because the inquiries made by the Ministry of 

the Interior had rebutted the applicant's implausible allegations. 

Furthermore, during the 2006 inquiries the Ministry had already interviewed 

the persons working in the hotel at the time (see paragraphs 41 and 65 

above). They had produced consistent evidence. However, there had been 

no record of those interviews. 

3. Civil proceedings for damages 

72. On 24 January 2009 Mr F. Medarski, on behalf of the applicant, 

brought a civil action for damages against the State and the Ministry of the 

Interior in relation to his alleged unlawftil abduction and ill-treatment. The 

claim was based on secfions 141 and 157 of the Obligations Act (see 

paragraphs 91 and 92 below). The applicant claimed 3 million Macedonian 

denars (equivalent to approximately 49,000 euros) in respect of the nonpecuniary damage resulting from his physical and mental pain and the fear 

that he would be killed during his detention. He reiterated his complaints 

that he had been denied the right to establish any contact with the outside 

world. The fact that his family had no information about his fate and 

whereabouts had added to his mental suffering. That had amounted to a 

separate violation of his family life under Article 8 of the Convention. He 

ftirther argued that such actions by State agents amounted to a violation of 

Articles 3, 5 and 8 of the Convenfion. Besides the evidence submitted in his 

criminal complaint (see paragraph 67 above), the applicant requested that 

the civil courts hear oral evidence from him and that a psychological 

examination be carried out. 

73. The Government informed the Court that sixteen hearings had so far 

been scheduled before the Skopje Court of First Instance. Many 

adjournments had been ordered owing to the absence of the applicant, who 

was imprisoned in Germany in relation to another offence. The case is still 

pending before the first-instance court, 

F. Other evidence submitted to the Court 

7. Sworn witness statement of 4 March 2010 

74. Mr H.K., who was the Macedonian Minister of the Interior between 

November 2002 and May 2004 and the Prime Minister between June and 

November 2004, gave a written statement, certified by a notary public on 

4 March 2010, in which he stated, inter alia: 

5. I can affirm that it was during my tenure as Minister of the Interior, in December 

2003 and January 2004, that Macedonian agents belonging to the UBK, acting under 

my authority as Minister and under the direct supervision of the then UBK Director, 
22 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTwere engaged in detaining a man who was travelling with a German passport under 

the name of Khaled El-Masri. 

6. Mr El-Masri attempted to enter Macedonia on a bus from Germany on 

31 December 2003. Macedonian police officials stopped him at the Tabanovce border 

crossing with Serbia. He was taken off the bus and held at the border crossing because 

the police suspected that his identity might be fraudulent. 

7. Our UBK liaisons told their United States intelligence partners about Mr ElMasri's arrival and were told that this man was suspected of involvement in Islamic 

terrorism. Macedonia received a valid international warrant from the US bearing 

Mr El-Masri's name and an official request to detain this man. 

8. Acting in compliance with the US request, the Macedonian Government agreed to 

hold Mr El-Masri until he could be handed over to the US authorities for further 

interrogation. As Minister of the Interior I was kept informed of the UBK's actions 

and authorised them from the very beginning, although I was not involved at the 

operational level. I also liaised with our US counterparts on behalf of the Macedonian 

Government. ' 

9. Mr El-Masri was held for a certain period in a location in Skopje, secretly and 

without incident, under the constant supervision of UBK agents. 

10. Mr El-Masri was not regarded as a threat to Macedonia and held no intelligence 

value for Macedonia's purposes. If the decision had been ours alone, we would have 

released him. However, we acted faithftilly on the warrant of our US counterparts, 

who indicated that they would send an aircraft and a team of CIA agents to 

Macedonia to take custody of Mr El-Masri and fly him out of the country. As time 

passed I indicated to our US counterparts that Macedonia would have to release 

Mr El-Masri if this rendition could not take place quickly. 

11. Ultimately, some time in 23 January 2004, Mr El-Masri was handed over to the 

custody of a CIA 'rendition team' at Skopje Airport and was flown out of Macedonia 

on a CIA-operated aircraft. 

12. The entire operation was thoroughly documented on the Macedonian side by 

UBK personnel in the Ministry of the Interior. This documentation was kept securely 

and ought to be available in the Ministry's files. I cannot state exactly what the files 

contain but I know that the relevant materials were not destroyed while I was the 

Minister of the interior. 

13. Some days after Mr El-Masri had been flown out of the country I received a 

final report on the operation through the appropriate line of reporting in the Ministry 

of the Interior. In my recollection, the final report indicated that Macedonia had 

adhered exactly to the terms of a legitimate international warrant regarding Mr ElMasri. Macedonia acted according to its domestic laws and procedures regulating the 

activities of the Ministry of the Interior. 

14. Macedonia's status as a reliable partner in global counterterrorism was 

strengthened by the way we carried out this operation. Our US partners expressed 

great appreciation for Macedonia's handling of the matter. 

15. 1 am aware that the US authorities ultimately released Mr El-Masri, without 

charge, after several ftirther months of detention. I understand that Mr El-Masri's 

situation resulted from a mistake. 1 maintain that if any mistake was made in Mr ElMasri's case, it was not Macedonia's mistake, and 1 do not believe there was any 

intentional wrongdoing on the part of the Macedonian authorities. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 23 

16. I am aware that Mr El-Masri has now taken his case to the European Court of 

Human Rights in Strasbourg. My statement is expressly and solely for the purposes of 

this Court's deliberations on the application of Mr El-Masri, and may not be used in 

the pursuit of any investigations against individuals. 

18. I solemnly declare upon my honour and conscience that the evidence contained 

in this statement is the truth, the whole truth and nothing but this truth. " 

2. Expert report on the applicant's case submitted by Mr J. G.S. 

75. Mr J.G.S. is a citizen of the United Kingdom. He works as a lawyer 

and investigator. Appointed as an adviser to Senator Dick Marty in the 

context of the Marty inquiry and a member of the Fava inquiry, he took part 

in fact-finding missions in the respondent State, attended meetings with the 

highest-level officials and contacted sources close to the Government and 

the intelligence services. He further discussed the applicant's case with 

other relevant domestic and foreign Government officials and nongovernmental representatives. He also interviewed the applicant on several 

occasions in 2006, as well as other witnesses. At the OSJI's request, on 

28 March 2011 he submitted an expert report running to sixty-two pages in 

which he detailed the factual findings of his investigations into the 

applicant's case. The report was based on a "considerable amount of 

original testimonial, documentary and other physical evidence related to the 

applicant's case", most of which was obtained from people who had 

requested anonymity given the confidential and sensitive nature of the 

matter. According to the expert, "the Government has classified as 'Top 

Secret' all the documentation in its files that might help to shed light on the 

case" (see paragraph 21 of the report). He made repeated site visits of the 

Tabanovce border crossing, the hotel and Skopje Airport and interviewed 

"witnesses and other sources who participated in or experienced the[se] 

events at first hand". In the report, the expert gave detailed information 

about: the applicant's arrival in the respondent State, the chronological 

sequence of events at the Tabanovce border crossing and the actions taken 

by the Macedonian border officials with respect to the applicant, the UBK's 

deployment to Tabanovce and the on-site interrogation of the applicant, the 

UBK's liaison with the CIA and the landing, route and dming of a CIAoperated flight which had been used for the applicant's transfer fi-om Skopje 

Airport. As noted in the report, after the arrival of the UBK agents at the 

Tabanovce border crossing, "the Macedonian authorities took meticulous 

and wide-ranging measures ... to conceal fi^om scrutiny anything out of the 

ordinary - including deviations from Macedonian law and procedures - that 

might happen to Mr El-Masri while held in Macedonian custody. I have 

been struck by the attention to detail I have learned about on the part of the 

Macedonian authorities, as they sought to cover up or interfere with almost 
24 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

every avenue of independent investigation into the truth of what happened" 

(see paragraph 141 of the report). 

3. Declarations of the European Centre for Constitutional and Human 

Rights (ECCHR) 

76. The applicant submitted two reports containing the ECCHR's 

observafions on the report of the First Committee of Inquiry of the German 

Bundestag (see paragraphs 59-61 above), cables sent by the US Embassy 

(see paragraph 77 below) and the arrest warrants issued by the Mimich 

public prosecutor's office (see paragraph 58 above). 

4. WikiLeaks cables 

77. The applicant submitted several diplomatic cables in which the US 

diplomatic missions in the respondent State, Germany and Spain had 

reported to the US Secretary of State about the applicant's case and/or the 

alleged CIA flights and the investigations in Germany and Spain (cable 

06SKOPJE105, issued 2 February 2006; cable 06SKOPJE118, issued on 

6 February 2006; cable 07BERLIN242, issued on 6 February 2006; cable 

06MADRID1490, issued on 9 June 2006; and cable 06MADRID3104, 

issued on 28 December 2006). These cables were released by WikiLeaks 

(described by the BBC on 7 December 2010 as "a whistle-blowing 

website") in 2010. 

II. RELEVANT DOMESTIC LAW 

The Constitution of 1991 (Ycmae) 

78. Under Article 12 §§ I, 2 and 4 of the Consdtution, the right to liberty 

is irrevocable. No one may be deprived of his liberty except by a court 

decision and in the cases and under a procedure prescribed by law. 

Everyone detained must be brought immediately, and in einy event no later 

than twenty-four hours from the detention, before a court that must decide 

on the lawftilness of the detention without any delay. 

B. Criminal Code {Kpueunen laKouuk) 

I. Time bar for criminal prosecution 

79. Pursuant to Article 107 § 1 (4) of the Criminal Code, prosecufion of 

offences subject to a prison sentence of more than three years becomes 

statute-barred five years after the offence was committed. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 25 

2. Running and suspension of the time bar 

80. Under Article 108 § 3, any procedural step taken with a view to 

prosecuting the perpetrator interrupts the running of the time bar. 

3. Unlawful deprivation of liberty 

81. Article 140 of the Criminal Code provides that a person who 

unlawfully detains, holds in custody or otherwise restricts another's 

freedom of movement is to be fined or punished by a term of imprisonment 

of one year. An official who unlawftilly deprives another of his or her 

liberty is to be punished by a term of imprisonment of six months to five 

years. 

4. Torture 

82. Article 142 of the Criminal Code punishes acts of torture, providing 

for a prison term of three months to five years. 

5. Ill-treatment in the performance of official duties 

83. Article 143 of the Criminal Code provides that a person who, in the 

performance of his or her official duties, mistreats, intimidates, insults or 

generally treats another in such a manner that his or her human dignity or 

personality is humiliated is to be punished by a term of imprisonment of six 

months to five years. 

C. Criminal Procedure Act of 1997 {3aK0H la KpueuHuama 

nocmanKa)^ as worded at the material time 

84. Section 3 of the Act provided that anyone who was summoned, 

arrested or detained had to be informed promptly, in a language which he or 

she understood, of the reasons for the summons, arrest or detention and of 

his or her statutory rights. He or she could not be forced to make a 

statement, A suspect, that is, a person accused of an offence, had to be 

clearly informed from the outset of his or her right to remain silent, to 

consult with a lawyer, to have a lawyer of his or her choice present during 

questioning, and to inform a third party of his or her detention. A detainee 

should be brought promptly or, at the latest, twenty-four hours after the 

detention, before a judge who would decide on the lawfialness of the 

detention. 

85. Section 16 of the Act provided that criminal proceedings must be 

instituted at the request of an authorised prosecutor. In cases involving 

offences subject to prosecution by the State proprio motu or on an 

application by the victim, the authorised prosecutor was the public 

prosecutor, whereas in cases involving offences subject to merely private 

charges, the authorised prosecutor was the private prosecutor. If the public 
26 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

prosecutor found no grounds for the institution or continuation of criminal 

proceedings, his or her role could be assumed by the victim, acting as a 

subsidiary prosecutor under the conditions specified in the Act. 

86. Section 56(1), (2) and (4) provided, inter alia, that where the public 

prosecutor found that there were no grounds for prosecuting an offence 

subject to State prosecution, he or she was to notify the victim of that 

decision within eight days. The public prosecutor also had to inform the 

victim that the latter could conduct the prosecution. The victim could take 

over the prosecution within eight days fi"om the receipt of the prosecutor's 

notification. A victim who was not informed of the public prosecutor's 

decision could make a written application to the competent court to take 

over the prosecution within three months after the prosecutor rejected his or 

her complaint, 

87. Under section 144, the public prosecutor was to reject a criminal 

complaint if, inter alia, there were no grounds to conclude that a crime had 

been committed. The public prosecutor had to notify the victim of the 

rejection and the reasons within eight days (section 56). An amendment to 

that provision, enacted in October 2004, specified that the public prosecutor 

should submit a copy of the decision rejecting the criminal complaint in 

which the victim was to be advised that he or she had the right to take over 

the prosecution within eight days. Where there was insufficient evidence or 

a complaint had been lodged against an unknown perpetrator, the public 

prosecutor would seek information from the Ministry of the Interior. The 

public prosecutor could also seek information from the complainant or any 

other person who could contribute to establishing the facts. 

88. Section 184 specified the grounds for pre-trial detention. 

89. Under section 185, pre-trial detention was ordered by an 

investigating judge. The person detained could appeal against that order 

within twenty-four hours before a three-judge panel, which was required to 

determine the appeal within forty-eight hours. 

90. Section 188(2) provided that officials of the Ministry of the Interior 

could arrest, without a court order, anyone suspected of committing an 

offence prosecutable by automatic operation of the law. The arrested person 

had to be brought promptly before an investigating judge. In accordance 

with section 188(3) and as an exception to the general rule. Ministry 

officials could detain a person if it was necessary to determine his or her 

identity, to verify his or her alibi or if there were other grounds requiring the 

collection of information to enable proceedings to be brought against a third 

party. Subsection (4) required the arrested person to be given the 

information referred to in section 3 of the Act. Section 188(6) provided that 

detention pursuant to section 188(3) could not exceed twenty-four hours. 

The Ministry official was required either to release the arrested person or to 

proceed in accordance with section 188(2). 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 27 

D. Obligations Act {SUKOH 3a oôJimau^uoHume odnocu) 

91. Section 141 of the Obligations Act defines different grounds for 

claiming civil compensation. 

92. Under section 157, an employer is liable for damage caused by an 

employee in the performance of his or her duties or in relation to them. The 

victim can claim compensation directly from the employee if the damage 

was caused intentionally. The employer may seek reimbursement from the 

employee of the compensation awarded to the victim if the employee caused 

the damage intentionally or negligently. 

III. RELEVANT INTERNATIONAL LAW AND OTHER PUBLIC 

MATERIAL 

A. International legal documents 

7. Vienna Convention on Consular Relations, done in Vienna on 

24 April 1963 and entered into force on 19 March 1967 

93. The relevant part of Article 36 of the Vienna Convention on 

Consular Relations reads as follows: 

Article 36 

Communication and contact with nationals of the sending State 

" 1 . With a view to facilitating the exercise ofconsular functions relating to nationals 

ofthe sending State; 

(b) if he so requests, the competent authorities of the receiving State shall, without 

delay, inform the consular post ofthe sending State if, within its consular district, a 

national of that State is arrested or committed to prison or to custody pending trial or 

is detained in any other manner. Any communication addressed to the consular post 

by the person arrested, in prison, custody or detention shall be forwarded by the said 

authorities without delay. The said authorities shall inform the person concerned 

without delay of his rights under this subparagraph ..." 

2. International Covenant on Civil and Political Rights (ICCPR) 

94. The relevant provisions of the ICCPR, which was adopted on 

16 December 1966 and entered into force on 23 March 1976, read as 

follows: 
28 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 

Article 4 

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), II, 15, 16 and 18 may be 

made under this provision. 

Article 7 

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or 

punishment. In particular, no one shall be subjected without his free consent to 

medical or scientific experimentation." 

Article 9 

"I. Everyone has the right to liberty and security of person. No one shall be 

subjected to arbitrary arrest or detention. No one shall be deprived of his liberty 

except on such grounds and in accordance with such procedure as are established by 

law. 

2. Anyone who is arrested shall be informed, at the time of arrest, ofthe reasons for 

his arrest and shall be promptly informed of any charges against him. 

3. Anyone arrested or detained on a criminal charge shall be brought promptly 

before a judge or other officer authorized by law to exercise judicial power and shall 

be entitled to trial within a reasonable time or to release. It shall not be the general 

rule that persons awaiting trial shall be detained in custody, but release may be subject 

to guarantees to appear for trial, at any other stage of the judicial proceedings, and, 

should occasion arise, for execution of the judgement. 

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to 

take proceedings before a court, in order that that court may decide without delay on 

the lawfulness of his detention and order his release if the detention is not lawful. 

5. Anyone who has been the victim of unlawful arrest or detention shall have an 

enforceable right to compensation." 

3. International Convention for the Protection of All Persons from 

Enforced Disappearance ("the CED ") 

95. The relevant provisions of the CED, which was adopted on 

20 December 2006 and entered into force on 23 December 2010 and has 

been signed but not ratified by the respondent State, read as follows: 

Article I 

" 1 . No one shall be subjected to enforced disappearance. 

2. No exceptional circumstances whatsoever, whether a state of war or a threat of 

war, internal political instability or any other public emergency, may be invoked as a 

justification for enforced disappearance." 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 29 

Article 2 

"For the purposes of this Convention, 'enforced disappearance' is considered to be 

the arrest, detention, abduction or any other form of deprivation of liberty by agents of 

the State or by persons or groups of persons acting with the authorisation, support or 

acquiescence ofthe State, followed by a refusal to acknowledge the deprivation of 

liberty or by concealment ofthe fate or whereabouts ofthe disappeared person, which 

place such a person outside the protection ofthe law." 

Article 3 

"Each State Party shall take appropriate measures to investigate acts defined in 

article 2 committed by persons or groups of persons acting without the authorisation, 

support or acquiescence ofthe State and to bring those responsible to justice." 

Article 4 

"Each State Party shall take the necessary measures to ensure that enforced 

disappearance constitutes an offence under its criminal law." 

4. UN High Commissioner for Human Rights, Manual on the Effective 

Investigation and Documentation of Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment, 2001 

96. The relevant passage of this manual reads as follows: 

"80. Alleged victims of torture or ill-treatment and their legal representatives must 

be informed of, and have access to, any hearing as well as to all information relevant 

to the investigation and must be entitled to present other evidence." 

5. International Law Commission, 2001 Articles on Responsibility of 

States for Internationally Wrongful Acts 

97. The relevant parts of the Articles, adopted on 3 August 2001 

{Yearbook of the International Law Commission, 2001, vol. II), read as 

follows: 

Article 7 

Excess of authority or contravention of instructions 

"The conduct of an organ of a State or of a person or entity empowered to exercise 

elements ofthe governmental authority shall be considered an act ofthe State under 

international law if the organ, person or entity acts in that capacity, even if it exceeds 

its authority or contravenes instructions. 
30 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

Article 14 

Extension in time ofthe breach of an international obligation 

"1. The breach of an international obligation by an act of a State not having a 

continuing character occurs at the moment when the act is performed, even if its 

effects continue. 

2. The breach of an international obligation by an act of a State having a continuing 

character extends over the entire period during which the act continues and remains 

not in conformity with the international obligation. 

3. The breach of an international obligation requiring a State to prevent a given 

event occurs when the event occurs and extends over the entire period during which 

the event continues and remains not in conformity with that obligation." 

Article IS 

Breach consisting of a composite act 

"1. The breach of an international obligation by a State through a series of actions or 

omissions defined in aggregate as wrongful occurs when the action or omission occurs 

which, taken with the other actions or omissions, is sufficient to constitute the 

wrongful act. 

2, In such a case, the breach extends over the entire period starting with the first of 

the actions or omissions of the series and lasts for as long as these actions or 

omissions are repeated and remain not in conformity with the international 

obligation." 

Article 16 

Aid or assistance in the commission of an internationally wrongful act 

"A State which aids or assists another State in the commission of an internationally 

wrongful act by the latter is internationally responsible for doing so if: 

{a) that State does so with knowledge ofthe circumstances ofthe internationally 

wrongful act; and 

ib) the act would be internationally wrongful if committed by that State." 

6. UN General Assembly, Report of the Special Rapporteur of the 

Commission on Human Rights on the question of torture and other 

cruel, inhuman or degrading treatment or punishment, 2 July 2002 

(A/57/} 73) 

98. The relevant passage of this report reads as follows: 

"35. Finally, the Special Rapporteur would like to appeal to all States to ensure that 

in all appropriate circumstances the persons they intend to extradite, under terrorist or 

other charges, will not be surrendered unless the Government ofthe receiving country 

has provided an unequivocal guarantee to the extraditing authorities that the persons 

concerned will not be subjected to torture or any other forms of ill-treatment upon 

return, and that a system to monitor the treatment ofthe persons in question has been 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 31 

put into place with a view to ensuring that they are treated with full respect for their 

human dignity ..." 

7. Parliamentary Assembly ofthe Council of Europe, Resolution 1433 

on lawfulness of detentions by the United States in Guantanamo 

Bay, adopted on 26 April 2005 

99. The relevant parts of this Resolution read as follows: 

"7. On the basis of an extensive review of legal and factual material from these and 

other reliable sources, the Assembly concludes that the circumstances surrounding 

detentions by the United States at Guantanamo Bay show unlawfulness and 

inconsistency with the rule of law, on the following grounds: 

vii. the United States has, by practising 'rendition' (removal of persons to other 

countries, without judicial supervision, for purposes such as interrogation or 

detention), allowed detainees to be subjected to torture and to cruel, inhuman or 

degrading treatment, in violation ofthe prohibition on non-refoulement." 

8. Parliamentary Assembly ofthe Council of Europe, Resolution 1463 

on enforced disappearances, adopted on 3 October 2005 

100. The relevant parts of this Resolution read as follows: 

"1. 'Enforced disappearances' entail a deprivation of liberty, refiisal to acknowledge 

the deprivation of liberty or concealment of the fate and the whereabouts of the 

disappeared person and the placing ofthe person outside the protection ofthe law. 

2. The Parliamentary Assembly unequivocally condemns enforced disappearance as 

a very serious human rights violation on a par with torture and murder, and it is 

concerned that this humanitarian scourge has not yet been eradicated, even in Europe 

9. UN General Assembly Resolution 60/148 on Torture and Other 

Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 

21 February 2006 

101. The UN General Assembly's Resolution 60/148 reads as follows, in 

so far as relevant: 

"The General Assembly 

11. Reminds all States that prolonged incommunicado detention or detention in 

secret places may facilitate the perpetration of torture and other cruel, inhuman or 

degrading treatment or punishment and can in itself constitute a form of such 

treatment, and urges all States to respect the safeguards concerning the liberty, 

security and dignity ofthe person." 
32 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

10. European Commission for Democracy through Law (Venice 

Commission), Opinion on the international legal obligations of 

Council of Europe Member States in respect of secret detention 

facilities and inter-state transport of prisoners (no. 363/2005, 

17 March 2006) 

102. The relevant parts of the Venice Commission's Opinion read as 

follows: 

"30. As regards the terminology used to refer to irregular transfer and detention of 

prisoners, the Venice Commission notes that the public debate frequently uses the 

term 'rendition'. This is not a term used in international law. The term refers to one 

State obtaining custody over a person suspected of involvement in serious crime (e.g. 

terrorism) in the territory of another State and/or the transfer of such a person to 

custody in the first State's territory, or a place subject to its jurisdiction, or to a third 

State. 'Rendition' is thus a general term referring more to the result - obtaining of 

custody over a suspected person - rather than the means. Whether a particular 

'rendition' is lawful will depend upon the laws ofthe States concerned and on the 

applicable rules of international law, in particular human rights law. Thus, even if a 

particular 'rendition' is in accordance with the national law of one of the States 

involved (which may not forbid or even regulate extraterritorial activities of slate 

organs), it may still be unlawful under the national law of the other State(s). 

Moreover, a 'rendition' may be contrary to customary international law and treaty or 

customary obligations undertaken by the participating State(s) under human rights law 

and/or international humanitarian law. 

31. The term 'extraordinary rendition' appears to be used when there is little or no 

doubt that the obtaining of custody over a person is not in accordance with the 

existing legal procedures applying in the State where the person was situated at the 

time. 

159. As regards inter-state transfers of prisoners 

f) There are only four legal ways for Council of Europe member States to transfer a 

prisoner to foreign authorities: deportation, extradition, transit and transfer of 

sentenced persons for the purpose of their serving the sentence in another country. 

Extradition and deportation proceedings must be defined by the applicable law, and 

the prisoners must be provided appropriate legal guarantees and access to competent 

authorities. The prohibition to extradite or deport to a country where there exists a risk 

of torture or ill-treatment must be respected." 

II. Report of the UN Special Rapporteur on the Promotion and 

Protection of Human Rights and Fundamental Freedoms while 

Countering Terrorism, A/HRC/IO/3, 4 February 2009 

103. In this report the Special Rapporteur noted the following: 

"38. ... the Special Rapporteur is concerned about situations where persons are 

detained for a long period of time for the sole purpose of intelligence-gathering or on 

broad grounds in the name of prevention. These situations constitute arbitrary 

deprivation of liberty. The existence of grounds for continued detention should be 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 33 

determined by an independent and impartial court. Without delay, the continued 

detention of such a person triggers a duty for the authorities to establish whether 

criminal suspicions can be confirmed and, if this is the case, to bring charges against 

the suspect and to put him on trial... 

51. The Special Rapporteur remains deeply troubled that the United States has 

created a comprehensive system of extraordinary renditions, prolonged and secret 

detention, and practices that violate the prohibition against torture and other forms of 

ill-treatment. This system required an international web of exchange of information 

and has created a corrupted body of information which was shared systematically with 

partners in the war on terror through intelligence cooperation, thereby corrupting the 

institutional culture ofthe legal and institutional systems of recipient States. 

60. The human rights obligations of States, in particular the obligation to ensure an 

effective remedy, require that such legal provisions must not lead to a priori dismissal 

of investigations, or prevent disclosure of wrongdoing, in particular when there are 

reports of international crimes or gross human rights violations. The blanket 

invocation of State secrets privilege with reference to complete policies, such as the 

United States secret detention, interrogation and rendition programme or third-party 

intelligence (under the policy of 'originator control') prevents effective investigation 

and renders the right to a remedy illusory. This is incompatible with Article 2 ofthe 

International Covenant on Civil and Political Rights. It could also amount to a 

violation ofthe obligation of States to provide judicial assistance to investigations that 

deal with gross human rights violations and serious violations of international 

humanitarian law." 

12. UN Human Rights Council, Resolutions 9/11 and 12/12: Right to 

the Truth, 24 September 2008 and 12 October 2009 

104. The relevant parts ofthe above Resolutions read as follows: 

"... recognised the right ofthe victims of gross violations of human rights and the 

right of their relatives to the truth about the events that have taken place, including the 

identification ofthe perpetrators ofthe facts that gave rise to such violations ..." 

13. Council of Europe, Guidelines ofthe Committee of Ministers ofthe 

Council of Europe on eradicating impunity for serious human rights 

violations, 30 March 2011 

105. The Guidelines address the problem of impunity in respect of acts 

or omissions that amount to serious human rights violations. They cover 

States' obligations under the Convention to take positive action in respect 

not only of their agents, but also in respect of non-state actors. According to 

the Guidelines, "impunity is caused or facilitated notably by the lack of 

diligent reaction of institutions or State agents to serious human rights 

violations. States are to combat impunity as a matter of Justice for the 

victims, as a deterrent with respect to future human rights violations and in 

order to uphold the rule of law and public trust in the justice system". They 

provide inter alia for the general measures that States should undertake in 
34 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

order to prevent impunity, the duty to investigate, as well as the adequate

guarantees for persons deprived of their liberty.

B. Relevant case-law of foreign jurisdictions and international bodies

1. Court of Appeal of England and Wales (Civil Division), Abbasi and

Another v. Secretary of State for Foreign and Commonwealth

Affairs and Secretary of State for the Home Department, Case

No: C/2002/06Î7A; 06I7B, 6November 2002

106. This case concerned Mr Feroz Ali Abbasi, a British national who

had been captured by US forces in Afghanistan and transported in January

2002 to Guantanamo Bay in Cuba. He had been held captive without access

to a court or any other form of tribunal or to a lawyer. He contended that the

right not to be arbitrarily detained had been infringed. The court found that

Mr Abbasi's detention in Guantanamo, which it referred to as "a legal

black-hole", had been arbitrary "in apparent contravention of fundamental

principles recognised by both [English and American] jurisdictions and by

international law".

2. United States Court of Appealsfor the Ninth Circuit, Falen Gherebi

V. George Walker Bush; Donald H. Rumsfeld, D.C. No. CV-03'

01267-AHM, 18 December 2003

107. On 18 December 2003, in a case involving a Libyan man

(Mr Gherebi) held as an "enemy combatant" at Guantanamo, the US Court

of Appeals described what the US Government had argued before it:

■'under the government's theory, it is free to imprison Gherebi indefmitely along

with hundreds of other citizens of foreign countries, friendly nations among them, and

to do with Gherebi and these detainees as it will, when it pleases, without any

compliance with any rule of law of any kind, without permitting him to consult

counsel, and without acknowledging any judicial forum in which its actions may be

challenged. Indeed, at oral argument, the government advised us that its position

would be the same even if the claims were that it was engaging in acts of torture or

that it was summarily executing the detainees. To our knowledge, prior to the current

detention of prisoners at Guantanamo, the U.S. government has never before asserted

such a grave and startling proposition. Accordingly, we view Guantanamo as unique

not only because the United States' territorial relationship with the Base is without

parallel today, but also because it is the first lime that the government has announced

such an extraordinary set of principles - a position so extreme that it raises the gravest

concerns under both American and international law."
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 35 

3. UN Committee against Torture, Agiza v. Sweden, Communication 

No 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), and UN 

Human Rights Committee, Alzery v. Sweden, UN Doc. 

CCPR/C/88/D/1416/2005 (2006) 

108. Both these cases were discussed in the 2006 Marty report (see 

paragraphs 150-161 ofthe report), the most relevant parts of which read as 

follows: 

"153. In short, the facts occurred in the following manner: on 18 December 2001, 

Mr Agiza and Mr Alzery, Egyptian citizens seeking asylum in Sweden, were the 

subject of a decision dismissing the asylum application and ordering their deportation 

on grounds of security, taken in the framework of a special procedure at ministerial 

level. In order to ensure that this decision could be executed that same day, the 

Swedish authorities accepted an American offer to place at their disposal an aircraft 

which enjoyed special over flight authorisations. Following their arrest by the 

Swedish police, the two men were taken to Bromma Airport where they were 

subjected, with Swedish agreement, to a 'security check' by hooded American agents. 

154. The account of this 'check' is especially interesting, as it corresponds in detail 

to the account given independently by other victims of 'rendition', including Mr ElMasri. The procedure adopted by the American team, described in this case by the 

Swedish police officers present at the scene, was evidently well rehearsed: the agents 

communicated with each other by gestures, not words. Acting very quickly, the agents 

cut Agiza's and Alzery's clothes off them using scissors, dressed them in tracksuits, 

examined every bodily aperture and hair minutely, handcuffed them and shackled 

their feet, and walked them to the aircraft barefoot. 

157. Prior to deportation ofthe two men to Egypt, Sweden sought and obtained 

diplomatic assurances that they would not be subjected to treatment contrary to the 

anti-torture convention, would have fair trials and would not be subjected to the death 

penalty. The 'assurances' were even backed up by a monitoring mechanism, regular 

visits by the Swedish Ambassador and participation by Swedish observers at the 

trial." 

109. The relevant United Nations committees found Sweden responsible 

imder Article 7 of the ICCPR, concluding that the treatment to which 

Mr Alzery had been subjected at Bromma Airport had been imputable to the 

State party and had amounted to a violation of Article 7 of the Covenant; 

that Sweden had breached its obligations to carry out a prompt, independent 

and impartial investigation into the events at Bromma Airport; and that the 

prohibition of refoulement, set out in that Article, had been breached in 

respect of both Mr Agiza and Mr Alzery. 

110. USA Today reported that the Swedish Government had paid 

USD 450,000 to Mr Alzery in compensation for his deportation. The same 

amount had been agreed to be paid to Mr Agiza ("Sweden compensates 

Egyptian ex-terror suspect", USA Today, 19 September 2008). 
36 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

C. Public sources highlighting concerns as to human rights violations 

allegedly occurring in US-run detention facilities in the aftermath 

of 11 September 2001 

H I. The applicant and third-party interveners submitted a considerable 

number of articles, reports and opinions of international, foreign and 

national bodies, non-governmental organisations and media, which raised 

concerns about alleged imlawful secret detentions and ill-treatment in USrun detention centres in Guantanamo Bay and Afghanistan. A summary of 

the most relevant sources is given below. 

7. Relevant materials of international human-rights organisations 

(a) Statement ofthe UN High Commissioner for Human Rights on 

detention of Taliban and Al-Qaeda prisoners at the US Base in 

Guantanamo Bay, Cuba, 16 January 2002 

112. The UN High Commissioner for Human Rights stated as follows: 

"All persons detained in this context are entitled to the protection of international 

human rights law and humanitarian law, in particular the relevant provisions of the 

International Covenant on Civil and Political Rights (ICCPR) and the Geneva 

Conventions of 1949. The legal status of the detainees and their entitlement to 

prisoner-of-war (POW) status, if disputed, must be determined by a competent 

tribunal, in accordance with the provisions of Article 5 of the Third Geneva 

Convention. All detainees must at all times be treated humanely, consistent with the 

provisions of the JCCPR and the Third Geneva Convention." 

(b) Amnesty International, Memorandum to the US Government 

on the rights of people in US custody in Afghanistan and 

Guantanamo Bay, April 2002 

113. In this memorandum, Amnesty International expressed its concerns 

that the US Government had transferred and held people in conditions that 

might amount to cruel, inhuman or degrading treatment and that violated 

other minimum standards relating to detention, and had refused to grant 

people in its custody access to legal counsel and to the courts in order to 

challenge the lawfulness of their detention, 

(c) Human Rights Watch, "United States, Presumption of Guilt: 

Human Rights Abuses of Post-September 11 Detainees**, VoL 

14, No. 4 (G), August 2002 

114. This report included the following passage: 

"... the fight against terrorism launched by the United States after September 11 did 

not include a vigorous affirmation of those freedoms. Instead, the country has 

witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of 

those directly affected have been non-U.S. citizens ... the Department of Justice has 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 37 

subjected them to arbitrary detention, violated due process in legal proceedings 

against them, and run roughshod over the presumption of innocence." 

(d) Human Rights Watch, '^United States: Reports of Torture of AlQaeda Suspects**, 26 December 2002 

115. This report referred to the Washington Post's article: "U.S. Decries 

Abuse but Defends Interrogations" which described "how persons held in 

the CIA interrogation center at Bagram air base in Afghanistan were being 

subject to "stress and duress" techniques, including "standing or kneeling 

for hours" and being "held in awkward, painful positions", 

116. It further stated: 

"The Convention against Torture, which the United States has ratified, specifically 

prohibits torture and mistreatment, as well as sending detainees to countries where 

such practices are likely to occur." 

(e) International Helsinki Federation for Human Rights, "Antiterrorism Measures, Security and Human Rights: Developments 

in Europe, Central Asia and North America in the Aftermath of 

September 11 '*, Report, April 2003 

117. The relevant passage of this report read as follows: 

"Many 'special interest' detainees have been held in solitary confinement or housed 

with convicted prisoners, with restrictions on communications with family, friends 

and lawyers, and have had inadequate access to facilities for exercise and for religious 

observance, including facilities to comply with dietary requirements. Some told 

human rights groups they were denied medical treatment and beaten by guards and 

inmates." 

(f) Amnesty International Report 2003 - United States of America, 

28 May 2003 

118. This report discussed the transfer of detainees to Guantanamo, 

Cuba in 2002, the conditions of their transfer ("prisoners were handcuffed, 

shackled, made to wear mittens, surgical masks and ear muffs, and were 

effectively blindfolded by the use of taped-over ski goggles") and the 

conditions of detention ("they were held without charge or trial or access to 

courts, lawyers or relatives"). It further stated: 

"A number of suspected members of al-Qa'Ida reported to have been taken into US 

custody continued to be held in undisclosed locations. The US government failed to 

provide clarification on the whereabouts and legal status of those detained, or to 

provide them with their rights under international law, including the right to inform 

their families of their place of detention and the right of access to outside 

representatives. An unknown number of detainees originally in US custody were 

allegedly transferred to third countries, a situation which raised concern that the 

suspects might face torture during interrogation." 
38 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

(g) Amnesty International, "Unlawful detention of six men from 

Bosnia-Herzegovina in Guantanamo Bay", 29 May 2003 

119. Amnesty International reported on the transfer of six Algerian men, 

by Bosnian Federation police, from Sarajevo Prison into US custody in 

Camp X-Ray, located in Guantanamo Bay, Cuba, It expressed its concerns 

that they had been arbitrarily detained in violation of their rights imder the 

International Covenant on Civil and Political Rights. It also referred to the 

decision of the Human Rights Chamber of Bosnia and Herzegovina in 

which the latter had found that the transfer had been in violation of Article 5 

of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol 

No. 6. 

(h) Amnesty International, "United States of America, The threat 

of a bad example: Undermining international standards as 'war 

on terror* detentions continue'*, 18 August 2003 

120. The relevant passage of this report read as follows: 

"Detainees have been held incommunicado in US bases in Afghanistan. Allegations 

of ill-treatment have emerged. Others have been held incommunicado in US custody 

in undisclosed locations elsewhere in the world, and the US has also instigated or 

involved itself in 'irregular renditions', US parlance for informal transfers of detainees 

between the USA and other countries which bypass extradition or other human rights 

protections." 

(i) Amnesty International, "Incommunicado detention/Fear of illtreatment**, 20 August 2003 

121. The relevant passage of this report read as follows: 

"Amnesty International is concerned that the detention of suspects in undisclosed 

locations without access to legal representation or to family members and the 

'rendering' of suspects between countries without any formal human rights 

protections is in violation ofthe right to a fair trial, places them at risk of ill-treatment 

and undermines the rule of law." 

(j) International Committee ofthe Red Cross, United States: ICRC 

President urges progress on detention-related issues, news 

release 04/03,16 January 2004 

122. The ICRC expressed its position as follows: 

"Beyond Guantanamo, the ICRC is increasingly concerned about the fate of an 

unknown number of people captured as part ofthe so-called global war on terror and 

held in undisclosed locations. Mr Kellenberger echoed previous official requests from 

the ICRC for information on these detainees and for eventual access to them, as an 

important humanitarian priority and as a logical continuation of the organization's 

current detention work in Guantanamo and Afghanistan." 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 39 

(k) UN Working Group on Arbitrary Detention, Opinion No, 

29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. 

United States of America, UN Doc, A/HRC/4/40/Add.l at 103 

(2006) 

123. The UN Working Group found that the detention ofthe persons 

concerned, held in facilities run by the United States secret services or 

transferred, often by secretly run flights, to detention centres in countries 

with which the United States authorities cooperated in their fight against 

international terrorism, fell outside all national and international legal 

regimes pertaining to the safeguards against arbitrary detention. In addition, 

it found that the secrecy surrounding the detention and inter-State transfer of 

suspected terrorists could expose the persons affected to torture, forced 

disappearance and extrajudicial killing. 

2. Other public documents 

Central Intelligence Agency, "Memo to the Department of Justice 

Command Centre-Background Paper on CIA *s combined use of 

interrogation techniques", 30 December 2004 

124. The applicant submitted to the Court the above-mentioned CIA 

memo, parts of which are no longer classified. The document "focuses on 

the topic of combined use of interrogation techniques, [the purpose of 

which] is to persuade High-Value Detainees to provide threat information 

and terrorist intelligence in a timely manner ... Effective interrogation is 

based on the concept of using both physical and psychological pressures in 

a comprehensive, systematic and cumulative manner to influence HVD 

behaviour, to overcome a detainee's resistance posture. The goal of 

interrogation is to create a state of learned helplessness and dependence ... 

The interrogation process could be broken into three separate phases: Initial 

conditions, transition to interrogation and interrogation". As described in the 

memo, the "Initial conditions" phase concerned "capture shock", 

"rendition" and "reception at Black Site". It reads, inter alia: 

"Capture ... contribute to the physical and psychological condition ofthe HVD prior 

to the start of interrogation ... 

I) Rendition 

... A medical examination is conducted prior to the flight. During the flight, the 

detainee is securely shackled and is deprived of sight and sound through the use of 

blindfolds, earmuffs, and hoods ..." 

125. The "Interrogation" phase included descriptions of "Detention 

conditions", "Conditioning Techniques" and "Corrective Techniques". 
40 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT3. Media articles 

126. The applicant further submitted copies of numerous articles 

published in Macedonian newspapers. The most relevant are cited below: 

(1) "Hunger Strike of the Taliban in Guantanamo", 4 March 2002; 

"Secret Agreement with Serious Shortcomings", 5 June 2003; "Four 

Frenchmen in Guantanamo under Torture", 16 October 2003; "In 

Guantanamo Torture is Performed", 27 November 2003; and "Prisoners 

without Charges or Rights", 12 January 2004 (all published in the 

newspaper Utrinski Vesnik); and 

(2) "CIA Tortures Captured Islamists in Afghanistan", 27 December 

2002; "USA Forgets about Human Rights in the course of the Antiterrorism Campaign", 16 January 2003; "Oblivion for 140 Prisoners of 

Guantanamo", 2 December 2003 (all published in the newspaper 

Dnevnik). 

127. He also provided copies of articles published in US newspapers, 

which reported on "stress and duress" techniques employed by the US in 

interrogating detainees at the US air base at Bagram in Afghanistan ("Army 

Probing Deaths of 2 Afghan Prisoners", Washington Post, 5 March 2003 

and "Questioning Terror Suspects in a Dark and Surreal World", New York 

Times, 9 March 2003). Other articles from US and British newspapers 

reported on the rendition to US custody of individuals suspected of terroristrelated activities prior to January 2004 ("A CIA-Backed Team Used Brutal 

Means to Crack Terror Cell", Wall Street Journal, 20 November 2001; 

"U.S. Behind Secret Transfer of Terror Suspects", Washington Post, 

11 March 2002; "Chretien Protests Deportation of Canadian: Prime Minister 

Calls U.S. Treatment of Terror Suspect 'Completely Unacceptable'", 

Washington Post, 6 November 2003; "The Invisible", The Independent, 

26 June 2003; and "Missing Presumed Guilty: where terror suspects are 

being held", The Independent, 26 June 2003, 

128. The applicant submitted articles in which journalists reported that 

the US Ambassador in Germany at the time had informed the German 

authorities in May 2004 that the CIA had wrongly imprisoned the applicant. 

They further reported that German Chancellor Angela Merkel had stated 

that the US Secretary of State Condoleezza Rice had admitted to her, in a 

private discussion, that the US had mistakenly abducted and detained the 

applicant. According to those articles, US representatives had declined to 

discuss anything about the case with reporters ("Wrongful Imprisonment: 

Anatomy of a CIA Mistake", The Washington Post, 4 December 2005; 

"German Man Sues CIA on claims of torture, El-Masri seeks damages after 

mistaken-identity 'rendition' case, NBC News, 6 December 2005; "Merkel 

Government stands by Masri mistake comments", Washington Post, 

7 December 2005; and "Germany Weighs if it Played Role in Seizure by 

U.S.", The New York Times, 21 February 2006). The latter article made 

reference to an interview with Mr H.K. in which he stated: 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 41 

"There is nothing the Ministry has done illegally. The man is alive and back home 

with his family. Somebody made a mistake. That somebody is not Macedonia." 

129. Lastly, in 2007, the Canadian Broadcasting Corporation (CBC) 

reported that the Canadian Prime Minister was to announce a settlement of 

10,000,000 United States dollars (USD) and issue a formal apology to a 

Mr Arar, a Canadian citizen bom in Syria, who had been arrested in 2002 by 

US authorities at New York JFK Airport and deported to Syria. The Prime 

Minister had already acknowledged that Mr Arar had suffered a 

"tremendous injustice" (CBC, "Ottawa reaches $10M settlement with Arar", 

25 January 2007). In 2010 The Guardian published an article about the 

alleged role of the United Kingdom (UK) in the rendition of suspects in 

which it was announced that former UK detainees in Guantanamo Bay 

might receive a very large payout fi-om the UK government, in some cases 

at least one million pounds sterling {The Guardian, "Torture and terrorism: 

Paying a high price", 17 November 2010). 

THE LAW 

I. THE GOVERNMENT'S PRELIMINARY OBJECTION OF NONCOMPLIANCE WITH THE SIX-MONTH RULE 

A. The parties' submissions 

7. The respondent Government 

130. The Government objected that the applicant had failed to comply 

with the six-month rule. They argued that he had applied to the domestic 

prosecuting authorities over four and a half years after the events 

complained of (the Government cited Bayram and Yildinm v. Turkey (dec), 

no. 38587/97, ECHR 2002-III; Artyomov v. Russia, no. 14146/02, 

§§ 113-118, 27 May 2010; and Nasirkhayeva v. Russia (dec), no. 1721/07, 

31 May 2011). Between May 2004 and October 2008 the applicant had 

remained totally passive and displayed no initiative in informing the 

Macedonian law-enforcement authorities about the alleged events. Instead, 

he had pursued remedies in other jurisdictions. Furthermore, he ought to 

have known long before October 2008 that any criminal investigation in the 

respondent State would have been ineffective. In this connection they 

referred to the absence of any contact between him and the law-enforcement 

authorities of the respondent State, as well as the absence of State 

prosecution propria motu, despite the fact that the prosecuting authorities 

had already been alerted about his case by their German counterparts. The 

last inquiries at international and national level, which had ended in January 
42 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT2007, long before the applicant had submitted his criminal complaint in 

October 2008, had not led to any finding of fact which would have been of 

relevance to that complaint. His criminal complaint had not contained any 

new evidence capable of reviving the State's duty to investigate 'his 

allegations. 

131. Lastly, they argued that the applicant had not been diligent in 

pursuing the domestic avenues of redress. His lack of diligence was evident 

because he had taken no initiative in informing himself about the progress 

made in the investigation (the Government cited Bulut and Yavuz v. Turkey 

(dec), no. 73065/01, 28 May 2002). Moreover, he had failed to 

communicate Mr H.K.'s statement to the domestic authorities and to seek 

the institution of criminal proceedings by the public prosecutor. Had the 

applicant requested the prosecution of an identified perpetrator, he would 

have been allowed to take over the prosecution as a subsidiary complainant 

if the public prosecutor dismissed his complaint. He had had no such 

opportunity in the present case, given that his criminal complaint of October 

2008 had been filed against an unidentified perpetrator. Furthermore, the 

applicant could not have challenged the decision dismissing his complaint. 

2. The applicant 

132. The applicant submitted in reply that the respondent State had a 

positive obligation under the Convention to carry out an investigation of its 

own motion. The internal investigation undertaken by the Ministry of the 

Interior (see paragraphs 64-66 above) could not be regarded as effective and 

independent within the meaning of Articles 3 and 13 ofthe Convention. 

Moreover, he had had no possibility of knowing about that inquiry, given 

the failure of the authorities to contact him or make their inquiry public 

From the moment he had returned to Germany in late May 2004 he had 

actively sought to obtain sufficient evidence to build an "arguable case" to 

present to the national prosecufing authorities. The period of four and a half 

years between his release and the filing ofthe criminal complaint in October 

2008 had not been excessive. On the contrary, that time had been entirely 

reasonable, considering that this was a complex case of disappearance, 

involving international intelligence cooperation, in which the US and 

Macedonian Governments had agreed to cover up the existence of a secret, 

multinational criminal enterprise Accordingly, he had acted diligently and 

in compliance with the Court's practice. He had sought in timely fashion to 

initiate a criminal investigation, but the authorities had not responded 

expeditiously and instead had secretly rejected his complaint. He had further 

sought in vain information fi-om the public prosecutor about the progress of 

the investigation. The public prosecutor had not notified him of her decision 

rejecting the complaint until 22 November 2010, fourteen months after his 

application had been lodged with the Court. Since the criminal complaint 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 43 

had been lodged against an unidentified perpetrator, he had been prevented 

from initiating a private prosecution. 

133. The applicant submitted in conclusion that he had accordingly 

complied with the six-month time-limit, which had started to run on 

23 January 2009, the date when the prosecution of the alleged offences had, 

according to him, become time-barred. 

B. The Court's assessment 

1. General principles established in the Court's case-law 

134. The Court reiterates that the Convention is an instrument for the 

protection of human rights and that it is of crucial importance that it is 

interpreted and applied in a manner that renders these rights practical and 

effective, not theoretical and illusory. This concerns not only the 

interpretation of substantive provisions of the Convention, but also 

procedural provisions; it impacts on the obligations imposed on respondent 

Governments, but also has effects on the position of applicants. Where time 

is ofthe essence in resolving the issues in a case, there is a burden on the 

applicant to ensure that his or her claims are raised before the Court with the 

necessary expedition to ensure that they may be properly, and fairly, 

resolved (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 

16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 

16073/90, § 160, ECHR 2009...). 

135. The object ofthe six-month time-limit under Article 35 § 1 is to 

promote legal certainty, by ensuring that cases raising issues under the 

Convention are dealt with in a reasonable time and that past decisions are 

not continually open to challenge. It marks out the temporal limits of 

supervision carried out by the organs ofthe Convention and signals to both 

individuals and State authorities the period beyond which such supervision 

is no longer possible (see Sabri Gune^ v. Turkey [GC], no. 27396/06, §§ 39 

and 40, 29 June 2012, and Walker v. the United Kingdom (dec), 

no. 34979/97, ECHR 2000-1). 

136. As a rule, the six-month period runs from the date of the final 

decision in the process of exhaustion of domestic remedies. Where it is clear 

from the outset, however, that no effective remedy is available to the 

applicant, the period runs from the date of the acts or measures complained 

of, or from the date of knowledge of such acts or their effect on or prejudice 

to the applicant (see Dennis and Others v. the United Kingdom (dec), 

no. 76573/01, 2 July 2002). Where an applicant avails himself of an 

apparently existing remedy and only subsequently becomes aware of 

circumstances which render the remedy ineffective, it may be appropriate 

for the purposes of Article 35 § 1 to take the start ofthe six-month period 

from the date when the applicant first became or ought to have become 
44 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

aware of those circumstances (see Paul and Audrey Edwards v. the United 

Kingdom (dec), no. 46477/99, 4 June 2001). 

2. Application ofthe above principles in the present case 

137. The Court observes that the Government's objection that the 

application was out of time was twofold: firstly, that the applicant's 

criminal complaint was submitted to the domestic authorities too late and 

secondly, that the complaint had been an ineffective remedy. In this 

connection they suggested that the six-month time-limit should be regarded 

as having started to run when the applicant first became or ought to have 

become aware of the circumstances which rendered the available domestic 

remedies ineffective. 

138. In order to answer the Government's admissibility objection, the 

Court must assess whether, in the particular circumstances of the present 

case, a criminal complaint was an effective remedy to be used by the 

applicant in order to seek redress for his Convention grievances. The answer 

to that question will be determinative for the calculation of the six-month 

time-limit. 

(a) Whether a criminal complaint was a remedy to be used by the 

applicant 

139. The Court reiterates that the determination of whether the applicant 

in a given case has complied with the admissibility criteria will depend on 

the circumstances of the case and other factors, such as the diligence and 

interest displayed by the applicant, as well as the adequacy ofthe domestic 

investigafion (see Abuyeva and Others v. Russia, no, 27065/05, § 174, 

2 December 2010). 

140. The Court notes that it has already found in cases against the 

respondent State that a criminal complaint is an effective remedy which 

should be used, in principle, in cases of alleged violations of Article 3 ofthe 

Convention (see Jasar v. the former Yugoslav Republic of Macedonia, 

no. 69908/01, 15 February 2007; Trajkoski v. the former Yugoslav Republic 

of Macedonia, no, 13191/02, 7 February 2008; Dzeladinov and Others v. the 

former Yugoslav Republic of Macedonia, no. 13252/02, 10 April 2008; and 

Sulejmanov v. the former Yugoslav Republic of Macedonia, no. 69875/01, 

24 April 2008). It sees no reasons that could justify departing from this 

principle, all the more so, in the circumstances of the present case, where 

allegations of inhuman treatment and unlawful deprivation of liberty 

purportedly are the result of a secret operation carried out without any legal 

basis. If the actions of the State agents involved have been illegal and 

arbitrary, it is for the prosecuting authorities of the respondent State to 

identify and punish the perpetrators. Alerting the public prosecutor's office 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 45 

about these actions must be seen as an entirely logical step on the part ofthe 

victim. 

141. The Court considers that it could not have been reasonably 

presumed that, when it was introduced in October 2008, a criminal 

complaint was a clearly ineffective remedy. There were merely some doubts 

about its effectiveness, and the applicant was required, under Article 35 § 1 

of the Convention, to attempt it before submitting his application to the 

Court. It would be unreasonable to expect the applicant to bring his 

complaints to the Court before his position in connection with the matter 

had been finally settled at domestic level in line with the principle of 

subsidiarity, according to which it is best for the facts of cases to be 

investigated and issues to be resolved in so far as possible at the domestic 

level. It is in the interests of the applicant, and the effectiveness of the 

Convention system, that the domestic authorities, who are best placed to do 

so, act to put right any alleged breaches ofthe Convention (see Varnava and 

Others, cited above, § 164). 

142. It is true that a considerable time elapsed between 29 May 2004, 

the date ofthe applicant's return to Germany, and the filing of his criminal 

complaint on 6 October 2008. No other legal action in the respondent State 

was taken by the applicant prior to that date. In accounting for this delay, 

the applicant gave an explanation which cannot in itself be considered 

unreasonable. His case concerned allegations of "extraordinary rendition", 

which included allegations of abduction, incommunicado detention and illtreatment. According to the 2006 Marty report, the authorities of most 

Council of Europe member States have denied allegations of their 

participation in rendition operations (see paragraph 43 above). Such policy 

of obstruction was reaffirmed in the 2007 Marty report (see paragraph 46 

above). Given the sensitivity of the matter and the concealment noted 

above, it was reasonable for the applicant to wait for developments that 

could have resolved crucial factual or legal issues. Indeed, the inquiries 

under way in the years prior to October 2008 revealed relevant elements that 

shed additional light on the applicant's allegations and constituted a more 

solid background for his criminal claim. Given the complexity ofthe case 

and the nature of the alleged human rights violations at stake, it is 

understandable that the applicant decided to pursue domestic remedies only 

when he had some corroborative material available to him. 

143. In any event, the criminal complaint was brought before the 

prosecution of the alleged offences' became time-barred (see paragraph 79 

above). It was rejected for lack of evidence and not for non-compliance with 

the admissibility criteria. It does not appear, therefore, that the delay in 

bringing the complaint rendered it inadmissible, ineffective or otherwise 

incapable of remedying the situation complained of On the contrary, by 

bringing his claim when some corroborative evidence was available at the 
46 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

international level, the applicant ftimished the Macedonian judicial 

authorities with more solid reasons to look further into his allegations. 

144. It follows from the above that a criminal complaint was a remedy 

that had to be used by the applicant in the circumstances. 

(b) The starting point ofthe six-month time-limit 

145. It thus remains to be determined when the final decision on his 

criminal complaint became known to the applicant. This date would mark 

the starting point ofthe six-month time-limit. 

146. The Court observes that little more than two months elapsed 

between the submission ofthe criminal complaint and the decision to reject 

it. This time, in the Court's view, cannot be regarded, in the circumstances 

of the case, so long as to require the applicant to enquire about the steps 

taken during that period by the domestic authorities. As submitted by the 

applicant, his further requests for information about the progress made in 

the investigation were to no avail (see paragraph 132 above). 

147. The public prosecutor rejected the applicant's criminal complaint 

on 18 December 2008. According to the applicant, that decision was not 

brought to his attention until 22 November 2010, despite the fact that the 

applicable procedural law placed the prosecuting authorities under an 

obligation to notify victims of their decision to dismiss a complaint within 

eight days (see paragraphs 86 and 87 above). The Government have not 

alleged that this requirement was complied with. Therefore, the starting 

point ofthe six-month time-limit cannot be fixed at 18 December 2008, the 

date of the public prosecutor's decision, but at the date on which the 

applicant subsequently learned about that decision. In the circumstances of 

the present case, it is not necessary to ascertain the truthfulness of the 

applicant's statement about the service ofthe decision since the Government 

have not demonstrated that the applicant received an official notification of 

the decision or otherwise learned about it before 20 January 2009, that is, 

six months before he lodged his application with the Court. 

(c) Conclusion 

148. In the light ofthe above, the Court considers that the applicant has 

complied with the six-month rule under Article 35 § 1 of the Convention 

and that the Government's objection that the application is out of time must 

accordingly be dismissed. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 47 

U. THE COURT'S ASSESSMENT OF THE EVIDENCE AND 

ESTABLISHMENT OF THE FACTS 

A. The parties* submissions 

149. The applicant maintained that he had been subjected to 

extraordinary rendition by CIA agents assisted, to a large extent, by agents 

of the respondent State. The international inquiries, the foreign 

investigations and the applicant's further efforts to investigate his case 

provided a wealth of compelling evidence supporting his allegations and 

rejecting the Government's explanation as utterly untenable. On the other 

hand, there had been "not a shred of credible evidence to buttress the 

Government's version of events". 

150. The Government denied the applicant's allegations as 

unsubstantiated, submitting various materials in support of that argument 

(see paragraphs 41 and 65 above). They further denied the existence of any 

documentation referred to by Mr H.K. (see paragraph 74 above and 

paragraph 12 ofthe statement). 

B. The Court's evaluation ofthe facts 

1. General principles 

151. In cases in which there are conflicting accounts of events, the Court 

is inevitably confronted when establishing the facts with the same 

difficulties as those faced by any first-instance court. It reiterates that, in 

assessing evidence, it has adopted the standard of proof "beyond reasonable 

doubt". However, it has never been its purpose to borrow the approach of 

the national legal systems that use that standard. Its role is not to rule on 

criminal guilt or civil liability but on Contracting States' responsibility 

under the Convention. The specificity of its task under Article 19 of the 

Convention - to ensure the observance by the Contracting States of their 

engagement to secure the fundamental rights enshrined in the Convention -

conditions its approach to the issues of evidence and proof In the 

proceedings before the Court, there are no procedural barriers to the 

admissibility of evidence or pre-determined formulae for its assessment. It 

adopts the conclusions that are, in its view, supported by the free evaluation 

of all evidence, including such inferences as may flow from the facts and 

the parties' submissions. According to its established case-law, proof may 

follow from the coexistence of sufficiently strong, clear and concordant 

inferences or of similar unrebutted presumptions of fact. Moreover, the level 

of persuasion necessary for reaching a particular conclusion and, in this 

cormection, the distribution ofthe burden of proof, are intrinsically linked to 

the specificity of the facts, the nature of the allegation made and the 
48 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTConvention right at stake. The Court is also attentive to the seriousness that 

attaches to a ruling that a Contracting State has violated fiindamental rights 

(see Creanga v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and 

the cases cited therein). 

152. Furthermore, it is to be recalled that Convention proceedings do not 

in all cases lend themselves to a strict application ofthe principle affirmanti 

incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 

of the Convention to the effect that where the events in issue lie within the 

exclusive knowledge ofthe authorities, as in the case of persons under their 

control in custody, strong presumpfions of fact will arise in respect of 

injuries and death occurring during that detention. The burden of proof in 

such a case may be regarded as resting on the authorities to provide a 

satisfactory and convincing explanation (see Çakici v. Turkey [GC], no. 

23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, 

§ 100, ECHR 2000-VII; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 

16 December 2008). In the absence of such explanation the Court can draw 

inferences which may be unfavourable for the respondent Government (see 

Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002). 

153. The Court has already found that these considerations apply also to 

disappearances examined under Article 5 of the Convention, where, 

although it has not been proved that a person has been taken into custody by 

the authorities, it is possible to establish that he or she was officially 

summoned by the authorities, entered a place under their control and has not 

been seen since. In such circumstances, the onus is on the Government to 

provide a plausible and satisfactory explanation as to what happened on the 

premises and to show that the person concerned was not detained by the 

authorities, but left the premises without subsequently being deprived of his 

or her liberty (see Tam§ and Others v. Turkey, no. 65899/01, § 160, ECHR 

2005-VIII; Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 

9 October 2008, and Matayeva and Dadayeva v. Russia, no. 49076/06, § 85, 

19 April 2011). Furthermore, the Court reiterates that, again in the context 

of a complaint under Article 5 § 1 of the Convention, it has required proof 

in the form of concordant inferences before the burden of proof is shifted to 

the respondent Government (see Ocalan v. Turkey [GC], no. 46221/99, 

§ 90, ECHR 2005-IV, and Creanga, cited above, § 89). 

2. Establishment of the facts in the present case 

154. The Court notes that the applicant's allegations are contested by the 

Government on all accounts. Having regard to the conflicting evidence 

submitted by the parties, the firm denial of the respondent Government of 

any involvement of State' agents in the events complained of and the 

rejection ofthe applicant's criminal complaint, the Court considers that an 

issue arises as to the burden of proof in this case and in particular as to 

whether it should shift from the applicant onto the respondent Government. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 49 

155. In this connection it emphasises that it is sensitive to the subsidiary 

nature of its role and recognises that it must be cautious in taking on the role 

of a first-instance tribunal of fact, where this is not rendered unavoidable by 

the circumstances of a particular case (see McKerr v. the United Kingdom 

(dec), no. 28883/95, 4 April 2000). Nonetheless, where allegations are 

made under Article 3 ofthe Convention the Court must apply a "particularly 

thorough scrutiny" (see, mutatis mutandis, Ribitsch v. Austria, 4 December 

1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, 

§ 51, 14 October 2010) even if certain domestic proceedings and 

investigations have already taken place (see Cobzaru v. Romania, 

no. 48254/99, § 65, 26 July 2007). In other words, in such a context the 

Court is prepared to be more critical of the conclusions of the domestic 

courts. In examining them, the Court may take into account the quality of 

the domestic proceedings and any possible flaws in the decision-making 

process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 

12 February 2009). 

156. The Court observes first of all that the applicant's description ofthe 

circumstances regarding his alleged ordeal was very detailed, specific and 

consistent throughout the whole period following his return to Germany, 

His account remained coherent throughout the international and other 

foreign inquiries and the domestic proceedings and involved consistent 

information regarding the place, time and duration of his alleged detention 

in the former Yugoslav Republic of Macedonia and in the CIA-run 

detention facility, as well as the treatment to which he was allegedly 

subjected while in the hotel, during his transfer into the custody of CIA 

agents at Skopje Airport and in the "Salt Pit" in Afghanistan. In addition to 

this, there are other aspects of the case which enhance the applicant's 

credibility. 

157. In the first place, the Court notes that the applicant's account was 

supported by a large amount of indirect evidence obtained during the 

international inquiries and the investigation by the German authorities. In 

this connection the Court notes the following evidence: 

(a) aviation logs confirming that a Boeing business jet (then 

registered by the US Federal Aviation Administrafion (FAA)) took off 

from Palma de Mallorca (Spain) on 23 January 2004, landed at Skopje 

Airport at 8.51 p.m. that evening and left Skopje more than three hours 

later, flying to Baghdad and then to Kabul; 

(b) flight logs confirming that a CIA-chartered Gulfstream aircraft 

with the tail number N982RK took off from Kabul on 28 May 2004 and 

landed at a military airbase in Albania called Bezat-Kuçova Aerodrome; 

(c) scientific tesfing of the applicant's hair follicles, conducted 

pursuant to a German criminal investigation, confirming that he had 

spent time in a South Asian country and had been deprived of food for an 

extended period of time; 
50 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

(d) geological records that confirm the applicant's recollection of 

minor earthquakes during his alleged detention in Afghanistan; 

(e) sketches that the applicant drew of the layout of the Afghan 

prison, which were immediately recognisable to another rendition victim 

who had been detained by US agents in Afghanistan. 

158. On the basis of that evidence the Marty inquiry was able to 

conclude that the applicant's case was "a case of documented rendition" 

(see paragraph 45 above) and that the Government's version of events was 

"utterly untenable" (see paragraph 46 above). The final report of the Fava 

inquiry "condemned the extraordinary rendition of the German citizen 

Khaled El-Masri" (see paragraph 49 above). Furthermore, the German 

Bundestag noted that the applicant's story was "credible as to the core facts 

of his detention in Macedonia and his transfer to Afghanistan, as well as his 

confinement there by United States forces" (see paragraph 60 above). 

159. Secondly, the applicant's inquiries in the respondent State revealed 

other relevant elements corroborating his story. In this context the Court 

draws particular attention to the letter from the Skopje Airport authorities 

issued on 18 June 2008 (see paragraph 67 above) confirming the Marty 

inquiry's findings regarding the route ofthe Boeing 737 aircraft with the tail 

number N313P. That document attested, for the first time, that the aircraft 

had landed at Skopje Airport without any passengers and that it had taken 

off carrying only one passenger. Other compelling evidence in support of 

the applicant was the expert report produced by Mr J.G.S., an investigator 

involved in the Marty and Fava inquiries, in which a detailed factual finding 

was made regarding events between the applicant's entry into the former 

Yugoslav Republic of Macedonia and his transfer into the custody of CIA 

agents. 

160. Thirdly, the Court attaches particular importance to the relevant 

material (see paragraphs 98, 103, 106-127 above), which is already a matter 

of public record, issued by different fora disclosing relevant information 

about the "rendition programme" run by the US authorities at the time. Even 

though this material does not refer to the applicant's case as such, it sheds 

light on the methods employed in similar "rendition" cases to those 

described by the applicant. 

161. Lasfly, the Court refers to the written statement of Mr H.K., who 

was, at the relevant time, the Minister ofthe Interior ofthe respondent State 

and soon afterwards became Prime Minister. In the statement, which is the 

only direct evidence about the events complained of before the Court, the 

witness confirmed that the Macedonian law-enforcement authorities, acting 

upon a valid international arrest warrant issued by the US authorities, had 

detained the applicant, kept him incommunicado and under the constant 

supervision of UBK (State Intelligence Service) agents in a location in 

Skopje. He had later been handed over to the custody of a CIA "rendition 

team" at Skopje Airport and had been flown out ofthe respondent State on a 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 51 

CIA-operated aircraft. His statement is a confirmation of the facts 

established in the course of the other investigations and of the applicant's 

consistent and coherent description of events. 

162. It is true that the domestic authorities were not given the 

opportunity to test the evidence of Mr H.K. Nor has the Court itself had the 

opportunity to probe the details of his statement in the course of the 

proceedings before it. However, this does not necessarily diminish its 

probative value, nor does the fact that it came to light after the domestic 

prosecuting authorities had already rejected the applicant's criminal 

complaint prevent the Court from taking it into consideration (see, mutatis 

mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008). 

163. In principle the Court will treat with caution statements given by 

Government ministers or other high officials, since they would tend to be in 

favour of the Government that they represent or represented. However, it 

also considers that statements from high-ranking officials, even former 

ministers and officials, who have played a central role in the dispute in 

question, are of particular evidentiary value when they acknowledge facts or 

conduct that place the authorities in an unfavourable light. They may then 

be construed as a form of admission (see in this context, mutatis mutandis. 

Military and Paramilitary Activities in and against Nicaragua (Nicaragua 

V. United States of America) Merits, Judgment, ICJ Reports 1986, p. 14, 

§64). 

164. The Court therefore considers that the evidence produced by this 

witness can be taken into account. In this connection it notes that the 

Government has not presented the Court with any reason to cast doubt on its 

credibility. 

165. In view ofthe above, the Court is satisfied that there h prima facie 

evidence in favour ofthe applicant's version of events and that the burden 

of proof should shift to the respondent Government. 

166. However, the Government have failed to demonstrate conclusively 

why the above evidence cannot serve to corroborate the allegations made by 

the applicant. They have not provided a satisfactory and convincing 

explanation of how the events in question occurred. Nor have they provided 

a plausible explanation as to what happened to the applicant after their 

authorities had taken control of him at the Tabanovce border crossing on 

31 December 2003. No credible and substantiated explanation has been 

given by the Government to rebut the presumption of responsibility on the 

part of their authorities to account for the applicant's fate since his 

apprehension on 31 December 2003. The evidence submitted by the 

Government (see paragraphs 41 and 65 above) is insufficient in this respect. 

In this connection it is noteworthy that no explanation was given by the 

Government as to why it had not been made available earlier (see paragraph 

45 above and paragraph 113 ofthe 2006 Marty report). Furthermore, the 

Government neither commented on nor submitted any objection to the 
52 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

expert report submitted by Mr J.G.S. They further failed to produce the 

documents regarding the applicant's case held by the Ministry of the 

Interior to which Mr H.K. had referred in his statement (see paragraph 74 

above). Neither was any written material in this context submitted to the 

Court. Lastly, the investigation which ended with the rejection of the 

applicant's complaint was inconclusive and the Court is unable to draw any 

benefit from its results. 

167. In such circumstances, the Court considers that it can draw 

inferences from the available material and the authorities' conduct (see 

Kadirova and Others v. Russia, no. 5432/07, §§ 87 and 88, 27 March 2012) 

and finds the applicant's allegations sufficiently convincing and established 

beyond reasonable doubt. 

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 

168. The applicant complained that the respondent State had been 

responsible for the ill-treatment to which he had been subjected while he 

was detained in the hotel and for the failure to prevent him from being 

subjected to "capture shock" treatment when transferred to the CIA 

rendition team at Skopje Airport. He fiirther complained that the respondent 

State had been responsible for his ill-treatment during his detention in the 

"Salt Pit" in Afghanistan by having knowingly transferred him into the 

custody of US agents even though there had been substantial grounds for 

believing that there was a real risk of such ill-treatment. In this latter 

context, he complained that the conditions of detention, physical assaults, 

inadequate food and water, sleep deprivation, forced feeding and lack of any 

medical assistance during his detenfion in the "Salt Pit" amounted to 

treatment contrary to Article 3 of the Convention. Lasfly, he complained 

that the investigation before the Macedonian authorities had not been 

effective within the meaning of this Article. 

Article 3 ofthe Convention reads as follows: 

"No one shall be subjected to torture or to inhuman or degrading treatment or 

punishment." 

A. The parties' submissions 

1. The applicant 

169. The applicant stated that his unlawful solitary incommunicado 

detention and interrogation for twenty-three days in the hotel, combined 

with repeated threats and prolonged uncertainty as to his fate, violated his 

rights under Article 3 of the Convention. Even without direct physical 

assaults, the cumulative and acute psychological effects of anguish and 

stress had been intentionally used for the express purpose of breaking his 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 53 

psychological integrity for the purpose of interrogation, and had been 

sufficient to drive him to protest by way of a hunger strike for ten days. 

170. He further argued that the respondent State had been responsible 

for the treatment to which he had been subjected during his transfer into the 

CIA's custody at Skopje Airport because its agents had actively facilitated 

and failed to prevent that operation. On that occasion, he had been subjected 

to brutal and terrifying treatment which had been intentionally designed to 

induce "capture shock" and break his will for the purpose of subsequent 

interrogation. The violence used to transfer him to the CIA plane had been 

out of all proportion to any threat that he had posed, and had been inflicted 

for the purpose of debasing him or breaking his spirit. His treatment both in 

the hotel and at Skopje Airport amounted to torture, 

171. Furthermore, he submitted that the Macedonian authorities had 

been under an obligation, when handing him to the CIA, to assess the risk of 

his ill-treatment in Afghanistan and to obtain appropriate diplomatic 

assurances. However, they had failed to do so despite the fact that there had 

been ample publicly available evidence of such ill-treatment. The 

respondent State had accordingly been responsible under Article 3 of the 

Convention. 

172. Lastly, the applicant submitted that the domestic authorities had 

conducted a cursory and grossly inadequate investigation into his arguable 

allegations. Despite calls from a plethora of international bodies and his 

complaints, the respondent State had failed to conduct a prompt, impartial 

and effective investigation, as required under this Article. 

2. The respondent Government 

173. The Government repeated their position of complete denial ofthe 

applicant's allegations of being ill-treated. They further challenged the 

credibility ofthe expert report of 5 January 2009, which, according to them, 

had not been conclusive regarding the applicant's state of health (see 

paragraph 36 above). For these reasons they required that the Court consider 

it with the "utmost reserve". 

174. They fiirther conceded that the investigation carried out by the 

prosecuting authorities had not been effective, but contended that this was 

due to the late submission ofthe applicant's criminal complaint and the fact 

that it had been filed against an unidentified perpetrator. 

B. Third-party interveners 

/. The UN High Commissioner for Human Rights (UNHCHR) 

175. The UNHCHR submitted that the right to the truth was an 

autonomous right triggered by gross violations, as in the case of enforced 

disappearances. This right was also embodied in Article 13 and woven into 
54 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

Articles 2, 3 and 5 ofthe Convention. In enforced disappearances cases, the 

right to the truth was a particularly compelling norm, in view ofthe mystery 

surrounding the fate and whereabouts of the victim, irrespective of the 

eventual reappearance of the victim. Knowing the truth about gross human 

rights violations and serious violations of humanitarian law afforded 

victims, their relatives and close friends a measure of satisfaction. The right 

to the truth inured to the benefit of the direct victims of the violation, as 

well as to their relatives and to society at large. Rights holders were entitled 

to seek and obtain information on various issues, namely the identity ofthe 

perpetrators, the progress and results of an investigation and the 

circumstances and reasons for the perpetration of violations. On the other 

hand, the right to the truth placed comprehensive obligations on the State, 

including duties (1) to carry out an effective investigation; (2) to give 

victims and their relatives effective access to the investigative process; (3) 

to disclose all relevant information to the victims and the general public; 

and (4) to protect victims and witnesses from reprisals and threats. Lastly, 

the UNHCHR argued that the right to the truth was recognised in 

international law (the Convention on the Protection of All Persons from 

Enforced Disappearance) and the jurisprudence ofthe Inter-American Court 

and the African Commission on Human and Peoples' Rights. 

2. Interights 

176. Interights submitted that the present case presented an opportunity 

for the Court to recognise as impermissible the system of violations which 

had become known as "extraordinary rendition" and to determine the State's 

responsibility under the Convention. The treatment of the rendered persons 

in preparation for or during the rendition process (including so-called 

"capture shock" treatment) and the use of coercive interrogation methods 

might amount to torture and/or ill-treatment. Extraordinary rendition 

practices inherently involved the removal of a person from one State to 

another where there was a real risk of torture or inhuman or degrading 

treatment. Such removal was prohibited by the principle of nonrefoulement, which was recognised in the Court's case-law (Interights 

referred to Soering v. the United Kingdom, 1 July 1989, Series A no. 161, 

and Saadi v. Italy, cited above). Under the non-refoulement principle, 

responsibility for complicity, participation or other forms of cooperation in 

"extraordinary renditions" would arise where the State authorities knew or 

ought to have known that the violations involved in renditions were being 

committed. In parallel to the "accomplice liability", under general 

international law a State could be held responsible where it rendered aid or 

assistance to another State in the commission of an internationally wrongful 

act ("accessory responsibility"). The failure to prevent such violations was 

the most flagrant where the State had given its consent to the acts of foreign 

agents violating the rights at stake. In addition, acquiescence or connivance 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 55 

in the acts of the foreign agents might engage the State's responsibility. 

After the rendition had taken place, the State had an obligation to conduct a 

prompt and effective investigation into allegations of secret detention and 

transfer, and to provide reparation, including compensation for nonpecuniary damage flowing from the breach. 

3. Redress 

177. Redress stated that an investigation in the context of allegations of 

extraordinary rendition must be prompt, independent, thorough and capable 

of leading to the identification and prosecution of the persons responsible; 

must provide for public scrutiny and victim participation; and must afford 

victims access to information in order to satisfy their right to the truth. The 

obligation to investigate was incorporated in both Articles 3 and 5 of the 

Convention. National security considerations could not operate so as to bar 

a victim from access to such information. If national security concerns were 

allowed to prevail over the victim's right of access to information, the nonderogable and absolute character of Article 3 and the prohibition of 

unacknowledged detention would be undermined. In this connection it 

referred to the Council of Europe's Guidelines of 30 March 2011 on 

eradicating impimity for serious human rights violations (see paragraph 105 

above), according to which "impunity for those responsible for acts 

amounting to serious human rights violations inflicts additional suffering on 

victims". An adequate remedy and reparation must include recognition of, 

and respect for, the victims of alleged breaches of Articles 3 and 5 of the 

Convention, so that they, their families and society, as a whole, could know 

the truth regarding the violations suffered. Besides compensation, other 

important components which addressed the long-term restorative aims of 

reparation must also be provided, including satisfaction (acknowledgment 

of the breach, an expression of regret or a formal apology), guarantees of 

non-repetition and rehabilitation. In this latter connection. Redress 

submitted an expert report of 28 March 2011 in which Dr M. Robertson, a 

chartered clinical psychologist, explained the psychological benefits for the 

victim of the public disclosure of the truth. According to her, public 

recognition of the truth and proper acknowledgment through some form of 

redress could play an integral role in the survivor's recovery. Conversely, if 

the truth remained hidden and the perpetrators walked free, that could 

compound the survivor's sense of helplessness and struggle to create 

meaning and obtain closure. 

4. Joint submissions by A mnesty International (A I) and the 

International Commission of Jurists (ICJ) 

178. AI and the ICJ submitted that the present case concerned a "US-led 

'secret detentions and renditions system', a large-scale, organised cross-
56 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTborder system that operated in disregard of national laws, as well as 

international legal obligations, without any judicial or administrative 

process, that depended on the co-operation, both active and passive, of 

many States". That system was characterised by the enforced disappearance 

of individuals, which constituted a violation of the right to freedom from 

torture and inhuman or degrading treatment or punishment. Article 3 of the 

Convention entailed non-refoulement obligations enjoining Contracting 

Parties from acting - and/or omitting to act - in ways that would result in 

the removal of any individuals from their jurisdiction when the Contracting 

Parties knew or ought to have known that their removal would expose them 

to a real risk of ill-treatment. 

179. Lastly, they maintained that the right to an effective investigation, 

imder, inter alia. Articles 3 and 5, read together with Article 13, entailed a 

right to the truth concerning violations of Convention rights perpetrated in 

the context ofthe "'secret detentions and renditions system'". This was so 

not only because of the scale and severity of the human rights violations 

concerned, but also in the light of the widespread impunity in respect of 

these practices and the suppression of information about them which 

persisted in multiple national jurisdictions. 

C. The Court's assessment 

1. Admissibility 

180. In view of the available material, the Court considers that the 

applicant's complaints under this Article raise serious issues of fact and law 

under the Convention, the determination of which requires an examination 

of the merits. The Court concludes therefore that these complaints are not 

manifestly ill-founded within the meaning of Article 35 § 3 (a) of the 

Convention. No other ground for declaring them inadmissible has been 

established. They must therefore be declared admissible. 

2. Merits 

181. The Court will first examine the applicant's complaint that there 

was no effective investigation into his allegations of ill-treatment. 

(a) Procedural aspect of Article 3: lack of an effective investigation 

(i) General principles 

182. The Court reiterates that where an individual raises an arguable 

claim that he has suffered treatment infringing Article 3 at the hands of the 

police or other similar agents of the State, that provision, read in 

conjunction with the State's general duty under Article 1 ofthe Convention 

to "secure to everyone within their jurisdiction the rights and freedoms 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 57 

defined in ... [the] Convention", requires by implication that there should be 

an effective official investigation. Such investigation should be capable of 

leading to the identification and punishment of those responsible. 

Otherwise, the general legal prohibition of torture and inhuman and 

degrading treatment and punishment would, despite its fundamental 

importance, be ineffective in practice and it would be possible in some cases 

for agents ofthe State to abuse the rights of those within their control with 

virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, 

§ 102, Reports of Judgments and Decisions 1998-VIIl; Corsacov v. 

Moldova, no. 18944/02, §68, 4 April 2006; and Georgiy Bykov, cited 

above, § 60). 

183. The investigation into serious allegations of ill-treatment must be 

both prompt and thorough. That means that the authorities must always 

make a serious attempt to find out what happened and should not rely on 

hasty or ill-founded conclusions to close their investigation or to use as the 

basis of their decisions (see Assenov and Others, cited above, § 103 and 

Ball and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 

2004-IV (extracts)). They must take all reasonable steps available to them to 

secure the evidence concerning the incident, including, inter alia, 

eyewitness testimony and forensic evidence (see Tanrikulu v. Turkey [GC], 

no. 23763/94, §104, ECHR 1999-IV, and Giil v. Turkey, no. 22676/93, 

§ 89, 14 December 2000). Any deficiency in the investigation which 

undermines its ability to establish the cause of injuries or the identity ofthe 

persons responsible will risk falling foul of this standard (see Boicenco v. 

Moldova, no. 41088/05, § 123, 11 July 2006). 

184. Furthermore, the investigafion should be independent from the 

executive (see Ogur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-

III, and Mehmet Emin Yuksel v. Turkey, no. 40154/98, § 37, 20 July 2004). 

Independence of the investigation implies not only the absence of a 

hierarchical or institutional connection, but also independence in practical 

terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV). 

185. Lastly, the victim should be able to participate effectively in the 

investigation in one form or another (see, mutatis mutandis, Ogur, cited 

above, §92; Ognyanova and Choban v. Bulgaria, no. 46317/99, § 107, 

23 February 2006; Khadzhialiyev and Others v. Russia, no. 3013/04, § 106, 

6 November 2008; Denis Vasilyev v. Russia, no. 32704/04, § 157, 

17 December 2009; and Dedovskiy and Others v. Russia, no. 7178/03, § 92, 

ECHR 2008). 

(ii) Application ofthe above principles in the present case 

186. The Court observes that the applicant, by having filed the criminal 

complaint in October 2008, brought to the attenfion ofthe public prosecutor 

his allegations of ill-treatment by State agents and their active involvement 

in his subsequent rendition by CIA agents. His complaints were supported 
58 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

by the evidence which had come to light in the course of the international 

and other foreign investigations. In the Court's opinion, the applicant's 

description of events and the available material were sufficient to raise at 

least a reasonable suspicion that the said Convention grievances could have 

been imputed to the State authorities as indicated by the applicant. He has 

thus laid the basis of a prima facie case of misconduct on the part of the 

security forces ofthe respondent State, which warranted an investigation by 

the authorities in conformity with the requirements of Article 3 of the 

Convention. In any event, the fact that the applicant lodged a formal 

criminal complaint was not decisive since the information brought to the 

knowledge ofthe authorities about serious violations of Article 3 at the fime 

gave rise ipso facto to an obligation under that Article that the State carries 

out an effective investigation (see, mutatis mutandis, Gorgiev v. the former 

Yugoslav Republic of Macedonia, no. 26984/05, § 64, 19 April 2012). 

187. On the basis of the applicant's complaint, the public prosecutor 

contacted the Ministry of the Interior with a view to obtaining information 

regarding the applicant's case. The Ministry submitted in reply a report 

which summarised the account noted in its earlier reports drawn up in view 

of the requests for legal assistance by the Munich public prosecutor. In 

December 2008, almost two and a half months later, the Skopje public 

prosecutor rejected the complaint for lack of evidence. Apart from seeking 

information from the Ministry, she did not undertake any other investigative 

measure to examine the applicant's allegations. The Government confirmed 

that the public prosecutor had not interviewed the applicant and the 

personnel working in the hotel at the material time. 

188. Lastly, it is not in dispute that no steps were taken to establish the 

purpose ofthe landing ofthe aircraft N313P, which was suspected of having 

been used to transfer the applicant from the respondent State to Afghanistan. 

According to the Marty inquiry, that aircraft had been used in the 

applicant's case and had been on a "rendition circuif involving other 

detainees transferred under similar circumstances (see paragraph 45 above). 

Furthermore, the applicant submitted in support of his allegations an official 

letter in which the Skopje Airport authorities had attested that the aircraft 

had landed at Skopje Airport on 23 January 2004 without any passengers 

and that it had taken off the next morning carrying only one passenger (see 

paragraph 67 above). The applicant's allegations regarding his transfer to 

Afghanistan, both in terms of fime and manner, were strikingly consistent 

with the actual course of that aircraft. However, the investigating authorities 

remained passive and decided not to follow up on that lead. It is surprising 

that they took no notice of that information and failed to investigate the 

identity of the passenger who had boarded the aircraft that night. An 

investigation of the circumstances regarding the aircraft and the passenger 

would have revealed relevant information capable of rebutting or 

confirming the well-foundedness ofthe applicant's account of events. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 59 

189. The public prosecutor ruled on the sole basis of the papers 

submitted by the Ministry of the Interior. She did not consider it necessary 

to go beyond the Ministry's assertions. When rejecting the applicant's 

complaint, she relied exclusively on the information and explanations given 

by the Ministry, whose agents were, broadly speaking, suspected of having 

been involved in the applicant's treatment. According to the Government, 

the public prosecutor considered that, in the absence of any evidence 

contradicting the Ministry's conclusions, no other investigatory measures 

were necessary (see paragraph 71 above). Having regard to the 

considerable, at least circumstantial, evidence available at the time of the 

submission of the applicant's complaint, such a conclusion falls short of 

what could be expected from an independent authority. The complexity of 

the case, the seriousness ofthe alleged violations and the available material 

required independent and adequate responses on the part of the prosecuting 

authorities. 

190. The Government also conceded that the investigation undertaken 

by the prosecuting authorities had not been effective (see paragraph 174 

above). 

191. Having regard to the parties' observations, and especially the 

submissions of the third-party interveners, the Court also wishes to address 

another aspect ofthe inadequate character ofthe investigation in the present 

case, namely its impact on the right to the truth regarding the relevant 

circumstances of the case. In this connection it underlines the great 

importance ofthe present case not only for the applicant and his family, but 

also for other victims of similar crimes and the general public, who had the 

right to know what had happened. The issue of "extraordineuy rendition" 

attracted worldwide attention and triggered inquiries by many international 

and intergovernmental organisations, including the UN human rights 

bodies, the Council of Europe and the European Parliament. The latter 

revealed that some of the States concerned were not interested in seeing the 

truth come out. The concept of" State secrets" has often been invoked to 

obstruct the search for the truth (see paragraphs 46 and 103 above). State 

secret privilege was also asserted by the US government in the applicant's 

case before the US courts (see paragraph 63 above). The Marty inquiry 

found, moreover, that "the same approach led the authorities ofthe former 

Yugoslav Republic of Macedonia' to hide the truth" (see paragraph 46 

above). 

192. The Court considers that the prosecuting authorities of the 

respondent State, after having been alerted to the applicant's allegations, 

should have endeavoured to undertake an adequate investigation in order to 

prevent any appearance of impunity in respect of certain acts. The Court 

does not underestimate the undeniable complexity of the circumstances 

surrounding the present case. However, while there may be obstacles or 

difficulfies which prevent progress in an invesfigation in a particular 
60 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

situation, an adequate response by the authorities in investigating 

allegations of serious human rights violations, as in the present case, may 

generally be regarded as essential in maintaining public confidence in their 

adherence to the rule of law and in preventing any appearance of collusion 

in or tolerance of unlawful acts. For the same reasons, there must be a 

sufficient element of public scrutiny of the investigation or its results to 

secure accountability in practice as well as in theory (see Anguelova v. 

Bulgaria, no. 38361/97, § 140, ECHR 2002-1V; Al-Skeini and Others v. the 

United Kingdom [GC], no. 55721/07, § 167, ECHR 2011; and Association 

21 December 1989 and Others v. Romania, nos. 33810/07 and 18817/08, 

§ 135, 24 May 2011). As the Council of Europe stated in its Guidelines of 

30 March 2011 on eradicating impunity for serious human rights violations 

(see paragraph 105 above), "impunity must be fought as a matter of justice 

for the victims, as a deterrent to prevent new violations and to uphold the 

rule of law and public trust in the justice system". The inadequate 

investigation in the present case deprived the applicant of being informed of 

what had happened, including of getting an accurate account ofthe suffering 

he had allegedly endured and the role of those responsible for his alleged 

ordeal. 

193. In view ofthe above considerations, the Court concludes that the 

summary investigation that has been carried out in this case cannot be 

regarded as an effective one capable of leading to the identification and 

punishment of those responsible for the alleged events and of establishing 

the truth. 

194. Against this background, the Court finds that there has been a 

violation of Article 3 ofthe Convention, in its procedural limb. 

(b) Substantive aspects of Article 3 ofthe Convention 

(i) Ill-treatment in the hotel and at Skopje Airport 

(a) General principles 

195. The Court reiterates that Article 3 ofthe Convention enshrines one 

ofthe most fundamental values of democratic societies. Unlike most ofthe 

substantive clauses of the Convention, Article 3 makes no provision for 

exceptions and no derogation from it is permissible under Article 15 § 2 

even in the event of a public emergency threatening the life of the nation 

(see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and 

Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has 

confirmed that even in the most difficult circumstances, such as the fight 

against terrorism and organised crime, the Convention prohibits in absolute 

terms torture and inhuman or degrading treatment or punishment, 

irrespective of the conduct of the person concerned (see Chahal v. the 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 61 

United Kingdom, 15 November 1996, § 79, Reports 1996-V, and Labita, 

cited above, § 119). 

196. In order for ill-treatment to fall within the scope of Article 3 it must 

attain a minimum level of severity. The assessment of this minimum 

depends on all the circumstances of the case, such as the duration of the 

treatment, its physical or mental effects and, in some cases, the sex, age and 

state of health of the victim (see Ireland v. the United Kingdom, 18 January 

1978, § 162, Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00, 

§ 67, ECHR 2006-IX). Further factors include the purpose for which the 

treatment was inflicted together with the intention or motivation behind it 

(compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 

I996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; and 

Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). 

197. In order to determine whether any particular form of ill-treatment 

should be classified as torture, the Court must have regard to the distinction 

drawn in Article 3 between this notion and that of inhuman or degrading 

treatment. This distinction would appear to have been embodied in the 

Convention to allow the special stigma of "torture" to attach only to 

deliberate inhuman treatment causing very serious and cruel suffering (see 

Aksoy, cited above, § 62). In addition to the severity of the treatment, there 

is a purposive element, as recognised in the United Nations Convention 

against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, which came into force on 26 June 1987, which defines torture 

in terms ofthe intentional infliction of severe pain or suffering with the aim, 

inter alia, of obtaining information, inflicting punishment or intimidating 

(Article I of the United Nations Convention) (see llhan v. Turkey [GC], 

no. 22211 m, § 85, ECHR 2000-VII). 

198. The obligation on Contracting Parties under Article I of the 

Convention to secure to everyone within their jurisdiction the rights and 

freedoms defined in the Convention, taken in conjunction with Article 3, 

requires States to take measures designed to ensure that individuals within 

their jurisdiction are not subjected to torture or inhuman or degrading 

treatment, including such ill-treatment administered by private individuals 

(see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 

2001-V). The State's responsibility may therefore be engaged where the 

authorities fail to take reasonable steps to avoid a risk of ill-treatment about 

which they knew or ought to have known (see Mahmut Kaya v. Turkey, 

no. 22535/93, § 115, ECHR 2000-III). 

(p) Application ofthe above principles in the present case 

199. In view of its conclusion regarding the shifting of the burden of 

proof to the Government (see paragraphs 165 and 167 above), the Court has 

already found that the applicant's account is sufficiently persuasive and that 

his allegations under this Article are established "beyond reasonable doubt". 
62 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

It remains to be ascertained whether the treatment to which the applicant 

was subjected falls within the ambit of this Article and whether it could be 

imputed to the respondent State. 

Treatment in the hotel 

200. As to the applicant's treatment in the hotel, the Court observes that 

he was under constant guard by agents of the Macedonian security forces, 

interrogated in a foreign language of which he had a limited command, 

threatened with a gun and consistently refused access to anyone other than 

his interrogators. Such treatment led the applicant to protest by way of a 

hunger strike for ten days. 

201. The respondent Government did not provide any justification for 

such treatment. 

202. It is true that while he was kept in the hotel, no physical force was 

used against the applicant. However, the Court reiterates that Article 3 does 

not refer exclusively to the infliction of physical pain but also of mental 

suffering, which is caused by creating a state of anguish and stress by means 

other than bodily assault (see Iljina and Sarulienè v. Lithuania, 

no. 32293/05, § 47, 15 March 2011). There is no doubt that the applicant's 

solitary incarceration in the hotel intimidated him on account of his 

apprehension as to what would happen to him next and must have caused 

him emotional and psychological distress. The applicant's prolonged 

confinement in the hotel left him entirely vulnerable. He undeniably lived in 

a permanent state of anxiety owing to his uncertainty about his fate during 

the interrogation sessions to which he was subjected. The Court notes that 

such treatment was intentionally meted out to the applicant with the aim of 

extracting a confession or information about his alleged ties with terrorist 

organisafions (see Dikme v. Turkey, no. 20869/92, §§ 82 and 95, ECHR 

2000-VIII). Furthermore, the threat that he would be shot if he left the hotel 

room was sufficiently real and immediate which, in itself, may be in conflict 

with Article 3 of the Convention (see, mutatis mutandis, Campbell and 

Cosans v. the United Kingdom, 25 February 1982, § 26, Series A no. 48, 

and Gafgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010). 

203. Lastly, the applicant's suffering was further increased by the secret 

nature of the operation and the fact that he was kept incommunicado for 

twenty-three days in a hotel, an extraordinary place of detention outside any 

judicial fi-amework (see also paragraph 101 above, and paragraph 236 

below). 

204. In view of the foregoing, the Court considers that the treatment to 

which the applicant was subjected while in the hotel amounted on various 

counts to inhuman and degrading treatment in breach of Article 3 of the 

Convention. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 63 

Treatment at Skopje Airport 

205. The Court observes that on 23 January 2004 the applicant, 

handcuffed and blindfolded, was taken fi-om the hotel and driven to Skopje 

Airport. Placed in a room, he was beaten severely by several disguised men 

dressed in black. He was stripped and sodomised with an object. He was 

placed in a nappy and dressed in a dark blue short-sleeved tracksuit. 

Shackled and hooded, and subjected to total sensory deprivation, the 

applicant was forcibly marched to a CIA aircraft (a Boeing 737 with the tail 

number N313P), which was surrounded by Macedonian security agents who 

formed a cordon around the plane. When on the plane, he was thrown to the 

floor, chained dovm and forcibly tranquillised. While in that position, the 

applicant was flovm to Kabul (Afghanistan) via Baghdad. The same pattern 

of conduct applied in similar circumstances has already been found to be in 

breach of Article 7 ofthe ICCPR (see paragraphs 108 and 109 above). 

206. The Court must first assess whether the treatment suffered by the 

applicant at Skopje Airport at the hands ofthe special CIA rendition team is 

imputable to the respondent State, In this connection it emphasises that the 

acts complained of were carried out in the presence of officials of the 

respondent State and within its jurisdiction. Consequently, the respondent 

State must be regarded as responsible under the Convention for acts 

performed by foreign officials on its territory with the acquiescence or 

connivance of its authorities (see Ila^cu and Others v. Moldova and Russia 

[GC], no, 48787/99, § 318, ECHR 2004-VII). 

207. As to the individual measures taken against the applicant, the Court 

reiterates that any recourse to physical force which has not been made 

strictiy necessary by the applicant's own conduct diminishes human dignity 

and is in principle an infringement of the right set forth in Article 3 of the 

Convention (see Ribitsch, cited above, § 38). In the present case, it notes 

that the whole operation of transferring the applicant into the custody ofthe 

CIA was well rehearsed and that the applicant did not pose any threat to his 

captors, who clearly outnumbered him. The respondent Government failed 

to submit any arguments providing a basis for an explanation or justification 

of the degree of force used at Skopje Airport. Accordingly, the physical 

force used against the applicant at the airport was excessive and unjustified 

in the circumstances. 

208. Furthermore, the Court observes that it has already found that the 

procedure of forcible undressing by the police may amount to such an 

invasive and potentially debasing measure that it should not be applied 

without a compelling reason (see Wieser v. Austria, no. 2293/03, § 40, 

22 February 2007). No such argument has been adduced to show that the 

measure applied against the applicant, who was already in a particularly 

helpless situation, was necessary. 

209. Nor was any explanation given to justify the use of physical 

restraints on the applicant. The same concerns the use of hooding, which has 
64 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTalready been found to cause, if not actual bodily injury, at least intense 

physical and mental suffering to the persons subjected to it (see Ireland 

V. the United Kingdom, cited above, §§ 96 and 167). 

210. The forcible administration of a suppository while the applicant 

was held on the ground without any explanation was not based on any 

medical considerations. Furthermore, the manner in which the applicant was 

subjected to that procedure caused serious physical pain and suffering (see 

Zontul V. Greece, no, 12294/07, § 89, 17 January 2012, and Jalloh, cited 

above, §§ 69 and 72). 

211. The Court notes that the above-mentioned measures were used in 

combination and with premeditation, the aim being to cause severe pain or 

suffering in order to obtain information, inflict punishment or intimidate the 

applicant (see paragraph 124 above). In the Court's view, such treatment 

amounted to torture in breach of Article 3 of the Convention. The 

respondent State must be considered directly responsible for the violation of 

the applicant's rights under this head since its agents actively facilitated the 

treatment and then failed to take any measures that might have been 

necessary in the circumstances of the case to prevent it from occurring (see 

Z and Others v. the United Kingdom, cited above; M.C v. Bulgaria, 

no. 39272/98, § 149, ECHR 2003-XII; and Members (97) of the Gldani 

Congregation of Jehovah's Witnesses v. Georgia, no. 71156/01, §§ 124 and 

125, 3 May 2007). 

(ii) Removal ofthe applicant 

(a) General principles 

212. It is the settled case-law of the Court that the decision by a 

Contracting State to remove a fiigitive - and, a fortiori, the actual removal 

itself - may give rise to an issue under Article 3, and hence engage the 

responsibility of that State under the Convention, where substantial grounds 

have been shown for believing that the person in question would, if 

extradited, face a real risk of being subjected to treatment contrary to Article 

3 in the receiving country. The establishment of such responsibility 

inevitably involves an assessment of conditions in the requesting country 

against the standards of Article 3 of the Convention. Nonetheless, there is 

no question of adjudicating on or establishing the responsibility of the 

receiving country, whether under general international law, under the 

Convention or otherwise. In so far as any liability under the Convention is 

or may be incurred, it is liability incurred by the sending Contracting State 

by reason of its having taken action which has as a direct consequence the 

exposure of an individual to proscribed ill-treatment (see Soering, cited 

above, § 91; Saadi v. Italy, cited above, §§125 and 126; Cruz Varas and 

Others v. Sweden, 20 March 1991, §§69-70, Series A no. 201; and 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 65 

Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, 

§ 67, ECHR 2005-Ï). 

213. In determining whether substantial grounds have been shown for 

believing that a real risk of treatment contrary to Article 3 exists, the Court 

will assess the issue in the light of all the material placed before it or, if 

necessary, material it has obtained proprio motu (see Hilal v. the United 

Kingdom, no. 45276/99, §60, ECHR 2001-11, and Saadi v. Italy, cited 

above, § 128). It must examine the foreseeable consequences of sending the 

applicant to the receiving country, bearing in mind the general situation 

there and his personal circumstances (see Vilvarajah and Others v. the 

United Kingdom, 30 October 1991, § 108, Series A no. 215). 

214. The existence ofthe risk must be assessed primarily with reference 

to those facts which were known or ought to have been known to the 

Contracting State at the time of the removal; the Court is not precluded, 

however, from having regard to information which comes to light 

subsequent to the removal. This may be of value in confirming or refuting 

the appreciation that has been made by the Contracting Party or the wellfoundedness or otherwise of an applicant's fears (see Cruz Varas and 

Others, cited above, § 76, and Vilvarajah and Others, cited above, § 107). 

(P) Application ofthe above principles in the present case 

215. On the basis of the facts already established to the required 

standard of proof, the Court must examine whether any responsibility may 

be attributed to the respondent State for having transferred the applicant into 

the custody ofthe US authorities. 

216. In the first place, the Court notes that there is no evidence that the 

applicant's transfer into the custody of CIA agents was pursuant to a 

legitimate request for his extradition or any other legal procedure recognised 

in international law for the transfer of a prisoner to foreign authorities (see 

paragraph 102 above). Furthermore, no arrest warrant has been shown to 

have existed at the time authorising the delivery of the applicant into the 

hands of US agents (contrast Ocalan v. Turkey [GC], no. 46221/99, § 92, 

ECHR 2005-IV). 

217. Secondly, the evidence suggests that the Macedonian authorities 

had knowledge of the destination to which the applicant would be flown 

from Skopje Airport. Documents issued by the Civil Aviation 

Administration (see paragraph 41 above) confirm that the aircraft N313P 

was allowed to land on 23 January 2004 at Skopje Airport. At 10.30 p.m. on 

23 January 2004 permission was given for the aircraft to take off for Kabul. 

At 2.25 a.m. on 24 January 2004 the authorities authorised its onward route 

to Baghdad. 

218. Thirdly, the Court attaches importance to the reports and relevant 

international and foreign jurisprudence, and given the specific 

circumstances of the present case, to media articles, referred to above (see 
66 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTparagraphs 99, 106-122, 126 and 127 above), which constitute reliable 

sources reporting practices that have been resorted to or tolerated by the US 

authorities and that are manifestly contrary to the principles of the 

Convention. The Court has already found some of these reports "worrying" 

and expressed its grave concerns about the interrogation methods used by 

the US authorities on persons suspected of involvement in international 

terrorism and detained in the naval base in Guantanamo Bay and in Bagram 

(Afghanistan) (see Al-Moayad v. Germany (dec), no. 35865/03, § 66, 

20 January 2007). This material was in the public domain before the 

applicant's actual transfer into the custody of the US authorities. It is 

capable of proving that there were serious reasons to believe that, if the 

applicant was to be transferred into US custody under the "rendition" 

programme, he would be exposed to a real risk of being subjected to 

treatment contrary to Article 3. Consequently, it must be concluded that the 

Macedonian authorities knew or ought to have known, at the relevant time, 

that there was a real risk that the applicant would be subjected to treatment 

contrary to Article 3 of the Convention. The respondent Government failed 

to dispel any doubts in that regard (see Saadi v. Italy, cited above, § 129). 

Materia] that came to light subsequent to the applicant's transfer confirms 

the existence of that risk (see paragraph 103, 108-110, 123, 124, 128 and 

129 above). 

219. Fourthly, the respondent State did not seek any assurances from the 

US authorities to avert the risk of the applicant being ill-treated (see, by 

contrast, Mamatkulov and Askarov, cited above, §§ 71-78; Al-Moayad, cited 

above; and Babar Ahmad and Others v. the United Kingdom (dec), 

nos. 24027/07, 11949/08 and 36742/08, § 113, 6 July 2010). 

220. In such circumstances, the Court considers that by transferring the 

applicant into the custody of the US authorities, the Macedonian authorities 

knowingly exposed him to a real risk of ill-treatment and to conditions of 

detention contrary to Article 3 ofthe Convention, 

221. Having regard to the manner in which the applicant was transferred 

into the custody of the US authorities, the Court considers that he was 

subjected to "extraordinary rendition", that is, "an extra-judicial transfer of 

persons from one jurisdiction or State to another, for the purposes of 

detention and interrogation outside the normal legal system, where there 

was a real risk of torture or cruel, inhuman or degrading treatment" (see 

Babar Ahmad and Others, cited above, § 113). 

222. Accordingly the respondent State has violated Article 3 of the 

Convention on this account. 

Hi) Conclusion 

223. In the light ofthe above, the Court concludes that the respondent 

State is to be held responsible for the inhuman and degrading treatment to 

which the applicant was subjected while in the hotel, for his torture at 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 67 

Skopje airport and for having transferred the applicant into the custody of 

the US authorities, thus exposing him to the risk of further treatment 

contrary to Article 3 ofthe Convention. 

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 

224. The applicant complained under Article 5 ofthe Convention that he 

had been detained unlawfully and kept incommunicado, without any arrest 

warrant having been issued, and that he had never been brought before a 

judge. He claimed that the respondent State bore direct responsibility for his 

entire period of captivity between 31 December 2003 and his return to 

Albania on 28 May 2004. Lastly, he complained that the absence of a 

prompt and effective investigation by the Macedonian authorities into his 

credible allegations had been in breach of his Article 5 rights. Article 5 of 

the Convention reads as follows; 

"I. Everyone has the right to liberty and security of person. No one shall be 

deprived of his liberty save in the following cases and in accordance with a procedure 

prescribed by law: 

(a) the lawful detention of a person after conviction by a competent court; 

(b) the lawful arrest or detention of a person for non-compliance with the lawful 

order of a court or in order to secure the fulfilment of any obligation prescribed by 

law; 

(c) the lawful arrest or detention of a person effected for the purpose of bringing 

him before the competent legal authority on reasonable suspicion of having 

committed an offence or when it is reasonably considered necessary to prevent his 

committing an offence or fleeing after having done so; 

(d) the detention of a minor by lawful order for the purpose of educational 

supervision or his lawful detention for the purpose of bringing him before the 

competent legal authority; 

(e) the lawful detention of persons for the prevention ofthe spreading of infectious 

diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; 

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised 

entry into the country or of a person against whom action is being taken with a view 

to deportation or extradition. 

2. Everyone who is arrested shall be informed promptly, in a language which he 

understands, ofthe reasons for his arrest and of any charge against him. 

3. Everyone arrested or detained in accordance with the provisions of 

paragraph 1 (c) of this Article shall be brought promptly before a judge or other 

officer authorised by law to exercise judicial power and shall be entitled to trial within 

a reasonable time or to release pending trial. Release may be conditioned by 

guarantees to appear for trial. 

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to 

take proceedings by which the lawfulness of his detention shall be decided speedily 

by a court and his release ordered if the detention is not lawful. 
68 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT5. Everyone who has been the victim of arrest or detention in contravention ofthe 

provisions of this Article shall have an enforceable right to compensation." 

A. The parties' submissions 

225. The applicant argued that the respondent State was responsible for 

the violation of his rights under this Article, by its own agents and/or 

foreign agents operating in its territory and under its jurisdiction. His 

detention in the former Yugoslav Republic of Macedonia without charge or 

judicial oversight had violated his Article 5 rights. His prolonged 

disappearance during his subsequent detention in Afghanistan constituted a 

violation of Article 5, for which the Macedonian Government was 

responsible. In addition, the respondent Government had violated Article 5 

of the Convention by failing to conduct an effective investigation into his 

credible allegations that he had disappeared for an extended period as a 

result of a joint operation by Macedonian and US agents. 

226. The Government contested the applicant's arguments. 

B. Third-party interveners 

227. Interights submitted that the abduction, rendition and detention of a 

person in secret and without notification ofthe person's family amounted to 

enforced disappearance. Such acts constituted forms of secret detention, 

where the person was not permitted any contact with the outside world 

("incommunicado detention"), and where the authorities did not disclose the 

place of detention or information about the fate of the detainee 

("unacknowledged detention"). The obligation of non-refoulement applied 

to situations involving a real risk of serious violations of the most 

fundamental human rights, including arbitrary detention and flagrant denial 

of a fair trial. 

228. AI and the ICJ argued that by their nature and severity, deprivations 

of liberty carried out in the context of the "secret detentions and renditions 

system" amounted to flagrant violations of Article 5 of the Convention. In 

such circumstances, Contracting Parties were required, under the nonrefoulement principle also embodied in Article 5 of the Convention, not to 

remove any individuals from their jurisdiction when the Contracting Parties 

knew or ought to have known that their removal would expose them to a 

real risk of flagrant breaches of their right to liberty and security of person. 

They further stated that by January 2004, there was much credible 

information in the public domain indicating that the US had been engaging 

in arbitrary, incommunicado and secret detention, as well as secret detainee 

transfers, of individuals the authorities suspected of being involved in or 

having knowledge of international terrorism. Under the non-refoulement 

principle, States were not absolved from responsibility "for all and any 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 69 

foreseeable consequences" suffered by an individual following removal 

from their jurisdiction. AI and the ICJ submitted that where an act or 

omission of a Contracting Party, taking place within its jurisdiction, had a 

direct causal connection with a rendition involving a continuing violation of 

Convention rights, taking place partly on its territory and partly elsewhere, 

both the State's negative and positive Convention obligations were engaged. 

In such cases, the responsibility ofthe State was to refrain from any act that 

would facilitate the rendition operation and to take such preventive, 

investigative and remedial measures as were available to it within the limits 

of its jurisdiction, to prevent, remedy or investigate the continuing violation 

ofthe Convention rights. 

C. The Courtis assessment 

/. Admissibility 

229. The Court notes that the complaints under this Article are not 

manifestly ill-founded within the meaning of Article 35 § 3 of the 

Convention and that they are not inadmissible on any other grounds. They 

must therefore be declared admissible. 

2. Merits 

(a) General principles established in the Court's case law 

230. The Court notes at the outset the fiindamental importance of the 

guarantees contained in Article 5 for securing the right of individuals in a 

democracy to be free from arbitrary detention at the hands ofthe authorities. 

It is for that reason that the Court has repeatedly stressed in its case-law that 

any deprivation of liberty must not only have been effected in conformity 

with the substantive and procedural rules of national law but must equally 

be in keeping with the very purpose of Article 5, namely to protect the 

individual from arbitrariness (see Chahal, cited above, § 118). This 

insistence on the protection ofthe individual against any abuse of power is 

illustrated by the fact that Article 5 § 1 circumscribes the circumstances in 

which individuals may be lawfully deprived of their liberty, it being stressed 

that these circumstances must be given a narrow interpretation having 

regard to the fact that they constitute exceptions to a most basic guarantee of 

individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A 

no. 311). 

231. It must also be stressed that the authors of the Convention 

reinforced the individual's protection against arbitrary deprivation of his or 

her liberty by guaranteeing a corpus of substantive rights which are intended 

to minimise the risks of arbitrariness, by allowing the act of deprivation of 

liberty to be amenable to independent judicial scrutiny and by securing the 
70 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

accountability of the authorities for that act. The requirements of Article 5 

§§ 3 and 4 with their emphasis on promptness and judicial supervision 

assume particular importance in this context. Prompt judicial intervention 

may lead to the detection and prevention of life-threatening measures or 

serious ill-treatment which violate the fundamental guarantees contained in 

Articles 2 and 3 ofthe Convention {SQC Aksoy, cited above, § 76). What is at 

stake is both the protection of the physical liberty of individuals as well as 

their personal security in a context which, in the absence of safeguards, 

could result in a subversion of the rule of law and place detainees beyond 

the reach ofthe most rudimentary forms of legal protection. 

232. Although the investigation of terrorist offences undoubtedly 

presents the authorities viith special problems, that does not mean that the 

authorities have carte blanche under Article 5 to arrest suspects and detain 

them in police custody, free from effective control by the domestic courts 

and, in the final instance, by the Convention's supervisory institutions, 

whenever they consider that there has been a terrorist offence (see Dikme, 

cited above, § 64). 

233. The Court emphasises in this connection that the unacknowledged 

detention of an individual is a complete negation of these guarantees and a 

most grave violation of Article 5. Having assumed control over an 

individual, the authorities have a duty to account for his or her whereabouts. 

For this reason. Article 5 must be seen as requiring the authorities to take 

effective measures to safeguard against the risk of disappearance and to 

conduct a prompt effective investigation into an arguable claim that a 

person has been taken into custody and has not been seen since (see Kurt, 

cited above, §§ 123-124). 

(b) Application ofthe above principles in the present case 

234. It is not disputed between the parties that on 31 December 2003 the 

applicant was taken off the bus on entering the territory of the respondent 

State and was questioned by Macedonian police officers. He subsequently 

disappeared and was thereafter not seen until he returned to Germany on 

29 May 2004. The Court has already established to the required standard of 

proof that the applicant was held in the hotel under constant guard by the 

Macedonian security forces between 31 December 2003 and 23 January 

2004, when he was handed over, at Skopje Airport, into the custody of the 

US authorities. On the latter date he was flown on a CIA-operated flight to 

Kabul (Afghanistan), where he was detained until his return to Germany. 

235. The Court must examine whether the applicant's detention in the 

former Yugoslav Republic of Macedonia was in conformity with the 

requirements set out in Article 5 of the Convention and whether the 

applicant's subsequent detention in Kabul is imputable to the respondent 

State. It will further examine whether there was an effective investigation 

into the applicant's allegations of unlawful and arbitrary detention. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 71 

(i) The applicant's detention in Skopje 

236. In the first place, the Court notes that there was no court order for 

the applicant's detention, as required under domestic law (see paragraph 89 

above). His confinement in the hotel was not authorised by a court. 

Furthermore, the applicant's detention in the respondent State has not been 

substantiated by any custody records, or, at least, no such documents have 

been submitted to the Court. The Court has already found that the failure to 

hold data recording such matters as the date, time and location of detention, 

the name of the detainee as well as the reasons for the detention and the 

name of the person effecting it must be seen as incompatible with the very 

purpose of Article 5 of the Convention (see Kurt, cited above, § 125). 

During his detention in the respondent State, the applicant did not have 

access to a lawyer, nor was he allowed to contact his family or a 

representative of the German Embassy in the respondent State, as required 

by Article 36 § 1 (b) of the Vienna Convention on Consular Relations (see 

paragraph 93 above). Furthermore, he was deprived of any possibility of 

being brought before a court to test the lawfulness of his detention (see 

paragraphs 84 and 90 above). His unacknowledged and incommunicado 

detention means that he was left completely at the mercy of those holding 

him (see Aksoy, cited above, § 83). Lastiy, the Court finds it wholly 

unacceptable that in a State subject to the rule of law a person could be 

deprived of his or her liberty in an extraordinary place of detention outside 

any judicial framework, as was the hotel in the present case. It considers 

that his detention in such a highly unusual location adds to the arbitrariness 

of the deprivation of liberty (see, mutatis mutandis, Bitiyeva and X v. 

Russia, nos. 57953/00 and 37392/03, § 118, 21 June 2007). 

237. Having regard to the above finding and the fact that the respondent 

Government submitted no explanation about the applicant's detention 

between 31 December 2003 and 23 January 2004, or any documents by way 

of justification, the Court concludes that during that period the applicant 

was held in unacknowledged detention in complete disregard of the 

safeguards enshrined in Article 5, and that this constitutes a particularly 

grave violation of his right to liberty and security as secured by Article 5 of 

the Convention (see Gisayev v. Russia, no. 14811/04, §§ 152-153, 20 

January 2011; Kadirova and Others v. Russia, no. 5432/07, §§ 127-130, 27 

March 2012; and Chitayev and Chitayev v. Russia, no. 59334/00, § 173, 18 

January 2007). 

(ii) The applicant's subsequent detention 

238. In view of its finding regarding the facts established to the required 

standard of proof (see paragraphs 165 and 167 above), the Court observes 

that on 23 January 2004 the Macedonian security forces handed over the 

applicant at Skopje Airport into the custody of CIA agents who transported 

him to Afghanistan on a special CIA-operated flight, described by the Marty 
72 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

inquiry as the "well-known rendition plane N313P" (see paragraph 64 ofthe 

2006 Marty report). He remained there until 28 May 2004, when he was 

transported back to Germany, via Albania. 

239. The Court reiterates that a Contracting State would be in violation 

of Article 5 ofthe Convention if it removed an applicant to a State where he 

or she was at real risk of a flagrant breach of that Article (see Othman (Abu 

Qatada) v. the United Kingdom, no. 8139/09, § 233, 17 January 2012). In 

the present case, the Court has already established to the required standard 

of proof that the applicant was subjected to "extraordinary rendition" (see 

paragraph 221 above), which entails detention ..."outside the normal legal 

system" and which, "by its deliberate circumvention of due process, is 

anathema to the rule of law and the values protected by the Convention" 

(see Babar Ahmad and Others, cited above, §§ 113-114). Furthermore, the 

detention of terrorist suspects within the "rendition" programme run by the 

US authorities has already been found to have been arbitrary in other similar 

cases (see paragraphs 103, 106, 113, 119 and 123 above). In such 

circumstances, the Court considers that it should have been clear to the 

Macedonian authorities that, having been handed over into the custody of 

the US authorities, the applicant faced a real risk of a flagrant violation of 

his rights under Article 5. In this connection the Court reiterates that 

Article 5 ofthe Convention lays down an obligation on the State not only to 

refrain from active infringements of the rights in question, but also to take 

appropriate steps to provide protection against an unlawful interference with 

those rights to everyone within its jurisdiction (see Storck v. Germany, 

no. 61603/00, §§ 100-101, ECHR 2005-V, and Medova v. Russia, 

no. 25385/04, § 123, 15 January 2009). The Macedonian authorities not 

only failed to comply with their positive obligation to protect the applicant 

from being detained in contravention of Article 5 of the Convention, but 

they actively facilitated his subsequent detention in Afghanistan by handing 

him over to the CIA, despite the fact that they were aware or ought to have 

been aware ofthe risk of that transfer. The Court considers therefore that the 

responsibility of the respondent State is also engaged in respect of the 

applicant's detention between 23 January and 28 May 2004 (see, mutatis 

mutandis, Rantsev v. Cyprus and Russia, no. 25965/04, § 207, ECHR 2010). 

(Hi) Conclusion 

240. Having regard to the above, the Court considers that the applicant's 

abduction and detention amounted to "enforced disappearance" as defined 

in international law (see paragraphs 95 and 100 above). The applicant's 

"enforced disappearance", although temporary, was characterised by an 

ongoing situation of uncertainty and unaccountability, which extended 

through the entire period of his captivity (see Varnava and Others, cited 

above, § 148). In this connection the Court would point out that in the case 

of a series of wrongful acts or omissions, the breach extends over the entire 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 73 

period starting with the first ofthe acts and continuing for as long as the acts 

or omissions are repeated and remain at variance with the international 

obligation concerned (see Ila^cu and Others, cited above, § 321, and see 

also paragraph 97 above). 

241. Having regard to these considerations, the Court concludes that the 

respondent Government is to be held responsible for violating the 

applicant's rights under Article 5 of tiie Convention during the entire period 

of his captivity. 

(iv) Procedural aspect of Article 5: lack of an effective investigation 

242. The Court has already found that the respondent State did not 

conduct an effective investigation into the applicant's allegations of illtreatment (see paragraphs 186-194 above). For the same reasons, it finds 

that no meaningful investigation was conducted into the applicant's credible 

allegations that he was detained arbitrarily (see Kurt, cited above, § 128). 

243. It accordingly finds that the respondent State has violated Article 5 

ofthe Convention in its procedural aspect. 

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 

244. The applicant further complained that his secret and extrajudicial 

abduction and arbitrary detention had violated his rights under Article 8 of 

the Convention, which reads as follows: 

"I. Everyone has the right to respect for his private and family life, his home and his 

correspondence. 

2. There shall be no interference by a public authority with the exercise of this right 

except such as is in accordance with the law and is necessary in a democratic society 

in the interests of national security, public safety or the economic well-being ofthe 

country, for the prevention of disorder or crime, for the protection of health or morals, 

or for the protection ofthe rights and freedoms of others." 

A. The parties' submissions 

245. The applicant submitted that his ordeal had been entirely arbitrary, 

constituting a serious violation of his right to respect for his private and 

family life under this Article. For over four months he had been detained in 

solitary confinement, seeing only his guards and interrogators and being 

separated from his family, who had no idea of his whereabouts. This 

situation had had a severe effect on his physical and psychological integrity. 

246. The Government contested that argument. 
74 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

B. The Court's assessment 

1. Admissibility 

247. The Court notes that this complaint is not manifestly ill-founded 

within the meaning of Article 35 § 3 ofthe Convention. It further notes that 

it is not inadmissible on any other grounds. It must therefore be declared 

admissible. 

2. Merits 

248. According to the Court's case-law, the notion of "private life" is a 

broad one and is not susceptible to exhaustive definition; it may, depending 

on the circumstances, cover the moral and physical integrity of the person. 

The Court further recognises that these aspects of the concept extend to 

situations of deprivation of liberty (see Raninen v. Finland, 16 December 

1997, § 63, Reports 1997-VIII). Article 8 also protects a right to personal 

development, the right to establish and develop relationships with other 

human beings and the outside world. A person should not be treated in a 

way that causes a loss of dignity, as "the very essence of the Convention is 

respect for human dignity and human freedom" (see Pretty v. the United 

Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the 

mutual enjoyment by members of a family of each other's company 

constitutes a fundamental element of family life (see, mutatis mutandis, 

Olsson V. Sweden (no. I), 24 March 1988, § 59, Series A no. 130). The 

Court reiterates that an essential object of Article 8 is to protect the 

individual against arbitrary interference by the public authorities (see Kroon 

and Others v. the Netherlands, 27 October 1994, §31, Series A no. 297-C). 

249. Having regard to its conclusions concerning the respondent State's 

responsibility under Articles 3 and 5 ofthe Convention, the Court considers 

that the State's actions and omissions likewise engaged its responsibility 

under Article 8 of the Convention. In view of the established evidence, the 

Court considers that the interference with the applicant's right to respect for 

his private and family life was not "in accordance with the law". 

250. Accordingly, it finds that in the present case there has been a 

violation of Article 8 ofthe Convention. 

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 

251. The applicant also complained that he had no effective remedy 

under Article 13 ofthe Convention in respect of his rights under Articles 3, 

5 and 8 ofthe Convention. He relied on Article 13 ofthe Convention, which 

reads as follows: 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 75 

"Everyone whose rights and freedoms as set forth in [the] Convention are violated 

shall have an effective remedy before a national authority notwithstanding that the 

violation has been committed by persons acting in an official capacity." 

A. The parties* submissions 

252. The applicant stated that there had been no effective investigation 

capable of establishing the facts of his detention and treatment, auxiliary to 

the investigative element of Article 3 ofthe Convention. Furthermore, there 

had been no domestic remedy to challenge the lawftilness of his detention in 

the former Yugoslav Republic of Macedonia and his transfer into CIA 

custody, auxiliary to his rights under Article 5. The same applied to his 

rights under Article 8 ofthe Convention. 

253, The Government conceded that prior to Mr H.K.'s statement the 

applicant had not had an effective domestic remedy as required under 

Article 13 in respect of his complaints under Articles 3 and 5 of the 

Convention. They further admitted that in the absence of any conclusions of 

the criminal investigation, the civil avenue of redress, as such, could not be 

regarded as effective in relation to the applicant's complaint under Article 8 

ofthe Convention. 

B. The Court's assessment 

7. Admissibility 

254. The Court notes that this complaint is not manifestly ill-founded 

within the meaning of Article 35 § 3 ofthe Convention. It further notes that 

it is not inadmissible on any other grounds. It must therefore be declared 

admissible. 

2. Merits 

(a) General principles established in the Court's case-law 

255. The Court observes that Article 13 guarantees the availability at 

national level of a remedy to enforce the substance ofthe Convention rights 

and freedoms in whatever form they might happen to be secured in the 

domestic legal order. The effect of this Article is thus to require the 

provision of a domestic remedy allowing the competent national authority 

both to deal with the substance of the relevant Convention complaint and to 

grant appropriate relief, although Contracting States are afforded some 

discretion as to the manner in which they conform to their obligations under 

this provision. The scope of the obligation under Article 13 varies 

depending on the nature ofthe applicant's complaint under the Convention. 

Nevertheless, the remedy required by Article 13 must be "effective" in 
76 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTpractice as well as in law, in particular in the sense that its exercise must not 

be unjustifiably hindered by the acts or omissions ofthe authorities ofthe 

respondent State. Where an individual has an arguable claim that he has 

been ill-treated by agents of the State, the notion of an "effective remedy" 

entails, in addition to the payment of compensation where appropriate, a 

thorough and effective investigation capable of leading to the identification 

and punishment of those responsible and including effective access for the 

complainant to the investigatory procedure (see Anguelova, cited above, 

§§ 161-162; Assenov and Others, cited above, §§ 114 et seq.; SUheyla Aydin 

V. Turkey, no. 25660/94, § 208, 24 May 2005; and Aksoy, cited above, §§ 95 

and 98). 

256. The Court further reiterates that the requirements of Article 13 are 

broader than a Contracting State's obligation under Articles 3 and 5 to 

conduct an effective investigation into the disappearance of a person who 

has been shown to be under their control and for whose welfare they are 

accordingly responsible (see, mutatis mutandis, Orhan, cited above, § 384; 

Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 

24 February 2005; and Kurt, cited above, § 140). 

257. Given the irreversible nature ofthe harm that might occur if the risk 

of ill-treatment materialised and the importance the Court attaches to 

Article 3, the notion of an effective remedy under Article 13 requires 

independent and rigorous scrutiny of the claim that there exist substantial 

grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari 

V. Turkey, no. 40035/98, § 50, ECHR 2000-VIII). This scrutiny must be 

carried out without regard to what the person may have done to warrant 

expulsion or to any perceived threat to the national security ofthe expelling 

State (see Chahal, cited above, § 151). 

(b) Application ofthe above principles in the present case 

258. The Court has established that the applicant brought the substance 

of his grievances under Articles 3, 5 and 8 ofthe Convention to the attention 

of the public prosecutor. Those complaints were never the subject of any 

serious investigation, being discounted in favour of a hastily reached 

explanation that he had never been subjected to any of the actions 

complained of The Court has already found the respondent State 

responsible for violations ofthe applicant's rights under Articles 3, 5 and 8 

of the Convention. His complaints under these Articles are therefore 

"arguable" for the purposes of Article 13 (see Boyle and Rice v. the United 

Kingdom, 27 April 1988, § 52, Series A no. 131). 

259. The applicant should accordingly have been able to avail himself of 

effective and practical remedies capable of leading to the identification and 

punishment of those responsible and to an award of compensation, for the 

purposes of Article 13. For the reasons set out above (see paragraphs 186-

194 and 242 above), no effective criminal investigation can be considered to 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 77 

have been carried out in accordance with Article 13 with regard to the 

applicant's complaints under Articles 3 and 5 of the Convention. The 

superficial approach which the public prosecutor took cannot be said to be 

compatible with the duty to carry out an investigation into the applicant's 

allegations of ill-treatment and unlawful deprivation of liberty. The 

Government have also confirmed the lack of an effective remedy at the 

relevant time (see paragraph 253 above). 

260. Furthermore, no evidence has been submitted to show that the 

decision to transfer the applicant into the custody ofthe CIA was reviewed 

with reference to the question ofthe risk of ill-treatment or a flagrant breach 

of his right to liberty and security of person, either by a judicial authority or 

by any other authority providing sufficient guarantees that the remedy 

before it would be effective (see Chahal, cited above, § 152). 

261. As the Government pointed out in their submissions, the 

ineffectiveness ofthe criminal investigation undermined the effectiveness of 

any other remedy, including a civil action for damages. The Court has 

already found in similar cases that a compensation claim is theoretical and 

illusory and not capable of affording redress to the applicant (see, mutatis 

mutandis, Cobzaru, cited above, § 83; Estamirov and Others v. Russia, 

no. 60272/00, §§ 77 and 120, 12 October 2006; and Musayev and Others 

V. Russia, nos. 57941/00, 58699/00 and 60403/00, § 175, 26 July 2007). 

262. Accordingly, the Court finds that the applicant was denied the right 

to an effective remedy under Article 13, taken in conjunction with 

Articles 3, 5 and 8 ofthe Convention. 

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 

263. Lastly, the applicant invoked Article 10 ofthe Convention, arguing 

that he had a right to be informed of the truth regarding the circumstances 

that had led to the alleged violations of his Convention rights. Article 10 

provides: 

"I. Everyone has the right to freedom of expression. This right shall include 

freedom to hold opinions and to receive and impart information and ideas without 

interference by public authority and regardless of frontiers. This Article shall not 

prevent states from requiring the licensing of broadcasting, television or cinema 

enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, 

may be subject to such formalities, conditions, restrictions or penalties as are 

prescribed by law and are necessary in a democratic society, in the interests of 

national security, territorial integrity or public safety, for the prevention of disorder or 

crime, for the protection of health or morals, for the protection of the reputation or 

rights of others, for preventing the disclosure of information received in confidence, 

or for maintaining the authority and impartiality of the judiciary." 
78 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

264. The Court considers that the issue raised under this Article overlaps 

with the merits ofthe applicant's complaints under Article 3 and has already 

been addressed in relation to those complaints (see paragraph 192 above). 

The present case does not raise any particular issue that should be analysed 

under Article 10 alone, which does not apply to the facts complained of 

Consequently, there is no appearance of a violation ofthe applicant's rights 

and freedoms set out in this Article. 

265. It follows that this complaint is manifestly ill-founded and must be 

rejected in accordance with Article 35 §§ 3 (a) and 4 ofthe Convention. 

VIIL APPLICATION OF ARTICLE 41 OF THE CONVENTION 

266. Article 41 ofthe Convention provides: 

"If the Court finds that there has been a violation ofthe Convention or the Protocols 

thereto, and if the internal law ofthe High Contracting Party concerned allows only 

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to 

the injured party." 

A. Damage 

267. The applicant claimed 300,000 euros (EUR) in respect of nonpecuniary damage for the suffering, anguish and mental breakdown linked 

to his ill-treatment, unacknowledged detention, uncertainty about his fate, 

the refusal of the respondent Government to acknowledge the truth and the 

impossibility of restoring his reputation. In the latter connection, he claimed 

that he had been subjected to a "defamatory campaign", which had had a 

negative impact on his employment prospects. In support of his claim, he 

referred to similar cases in which the Governments of Sweden, Canada and 

the United Kingdom (see paragraphs 110 and 129 above) had been ordered 

or had agreed to pay compensation of between USD 450,000 and 

USD 10,000,000. He further requested that the Court order the respondent 

State to conduct an effective and thorough investigation into the facts of his 

case. The applicant did not claim any award in respect of pecuniary damage. 

268. The Government contested the applicant's claims under this head. 

They reaffirmed that he had not been subjected to "extraordinary rendition" 

and rejected his allegations as unsubstantiated. Lastly, they stated that the 

assessment of any damage should be individualised and that it should not be 

calculated by way of comparison with other cases. 

269. The Court reiterates that Article 41 empowers it to afford the 

injured party such satisfaction as appears to it to be appropriate. In this 

connection it observes that it has found serious violations of several 

Convention provisions by the respondent State. It has found that the 

applicant was tortured and ill-treated and that the responsibility of the 

respondent State was engaged for having transferred him knowingly into the 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 79 

custody of the CIA although there had been serious reasons to believe that 

he might be subjected to treatment contrary to Article 3 of the Convention. 

It has also found that the applicant was detained arbitrarily, contrary to 

Article 5. The respondent State also failed to carry out an effective 

investigation as required under Articles 3 and 5 of the Convention, In 

addition, the Court has found a violation of the applicant's rights under 

Article 8. Lastly, it has held the respondent State responsible for having 

failed to provide an effective remedy within the meaning of Article 13 of 

the Convention for the applicant's grievances imder Articles 3, 5 and 8. The 

Court considers that in view of the violations found, the applicant 

undeniably suffered non-pecuniary damage which carmot be made good by 

the mere finding of a violation. 

270. Consequently, regard being had to the extreme seriousness of the 

violations ofthe Convention of which the applicant was a victim, and ruling 

on an equitable basis, as required by Article 41 ofthe Convention, the Court 

awards him EUR 60,000, plus any tax that may be chargeable on that 

amount (see Ila^cu and Others, cited above, § 489). 

B. Costs and expenses 

271. The applicant did not seek the reimbursement of the costs and 

expenses incurred before the domestic courts and before the Court. 

272. Accordingly, the Court considers that there is no call to award him 

any sum on that account. 

C. Default interest 

273. The Court considers it appropriate that the default interest rate 

should be based on the marginal lending rate ofthe European Central Bank, 

to which should be added three percentage points. 

FOR THESE REASONS, THE COURT UNANIMOUSLY 

1. Dismisses the Government's preliminary objection of non-compliance 

with the six-month rule; 

2. Declares the complaints under Articles 3, 5, 8 and 13 ofthe Convention 

admissible and the remainder ofthe application inadmissible; 

3. Holds that there has been a violation of Article 3 ofthe Convention in its 

procedural aspect on account of the failure of the respondent State to 
80 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENTcarry out an effective investigation into the applicant's allegations of illtreatment; 

4. Holds that there has been a violation of Article 3 of the Convention by 

the respondent State on account of the inhuman and degrading treatment 

to which the applicant was subjected while being held in the hotel in 

Skopje; 

5. Holds that the respondent State is responsible for the ill-treatment to 

which the applicant was subjected at Skopje Airport and that this 

treatment must be classified as torture within the meaning of Article 3 of 

the Convention; 

6. Holds that the responsibility of the respondent State is engaged with 

regard to the applicant's transfer into the custody of the United States 

authorities despite the existence of a real risk that he would be subjected 

to further treatment contrary to Article 3 ofthe Convention; 

7. Holds that the applicant's detention in the hotel for twenty-three days 

was arbitrary, in breach of Article 5 ofthe Convention; 

8. Holds that the respondent State is responsible under Article 5 of the 

Convention for the applicant's subsequent captivity in Afghanistan; 

9. Holds that the respondent State failed to carry out an effective 

investigation into the applicant's allegations of arbitrary detention, as 

required under Article 5 ofthe Convention; 

10. Holds that there has been a violation of Article 8 ofthe Convention; 

11. Holds that there has been a violation of Article 13 ofthe Convention on 

account of the lack of effective remedies in respect of the applicant's 

grievances under Articles 3, 5 and 8 ofthe Convention; 

12. Hold 

(a) that the respondent State is to pay the applicant, within three 

months, EUR 60,000 (sixty thousand euros), plus any tax that may be 

chargeable, in respect of non-pecuniary damage; 

(b) that from the expiry of the above-mentioned three months until 

settlement simple interest shall be payable on the above amount at a 

rate equal to the marginal lending rate of the European Central Bank 

during the default period plus three percentage points; 

13. Dismisses the remainder ofthe applicant's claim for just satisfaction. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 81 

Done in English and in French, and delivered at a public hearing in the 

Human Rights Building, Strasbourg, on 13 December 2012. 

Michael O'Boyle Nicolas Bratza 

Deputy Registrar President 

In accordance with Article 45 § 2 ofthe Convention and Rule 74 § 2 of 

the Rules of Court, the following separate opinions are annexed to this 

judgment: 

(a) the joint concurring opinion of Judges Tulkens, Spielmann, 

Sicilianos and Keller; 

(b) the joint concurring opinion of Judges Casadevall and Lopez Guerra. 

N.B. 

M.O'B. 
82 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

SEPARATE OPINION 

JOINT CONCURRING OPINION OF JUDGES TULKENS, 

SPIELMANN, SICILIANOS AND KELLER 

(Translation) 

1. In relation to Article 13 of the Convention, which the Court 

unanimously found to have been breached in conjunction with Articles 3, 5 

and 8, we would have liked the reasoning to extend to an aspect which in 

our view is fundamental. On account of the seriousness of the violations 

found, we consider that the Court should have acknowledged that in the 

absence of any effective remedies - as conceded by the Government - the 

applicant was denied the "right to the truth", that is, the right to an accurate 

account of the suffering endured and the role of those responsible for that 

ordeal (see Association "21 December 1989" and Others v. Romania, 

nos. 33810/07 and 18817/08, § 144, 24 May 2011). 

2. Obviously, this does not mean "truth" in the philosophical or 

metaphysical sense of the term but the right to ascertain and establish the 

true facts. As was pointed out by the United Nations High Commissioner 

for Human Rights, and also by Redress, Amnesty International and the 

International Commission of Jurists, in enforced disappearances cases the 

right to the truth is a particularly compelling norm in view of the secrecy 

surrounding the victims' fate. 

3. In addressing the applicant's complaint under Article 10 of the 

Convention that he "had a right to be informed of the truth regarding the 

circumstances that had led to the alleged violations", the Court considers 

that the issue raised overlaps with the merits of his Article 3 complaints and 

has already been dealt with in relation to those complaints (see 

paragraph 264 ofthe judgment). It could therefore be argued that the Court 

is implicitly acknowledging that the right to the truth has a place in the 

context of Article 3, although it does not really commit itself to such a 

finding, instead simply noting that there was an inadequate investigation 

which deprived the applicant of the possibility of being informed (see 

paragraph 193 of the judgment). 

4. We consider, however, that the right to the truth would be more 

appropriately situated in the context of Article 13 of the Convention, 

especially where, as in the present case, it is linked to the procedural 

obligations under Articles 3, 5 and 8. The scale and seriousness of the 

human rights violations at issue, committed in the context of the secret 

detentions and renditions system, together with the widespread impunity 

observed in multiple jurisdictions in respect of such practices, give real 

substance to the right to an effective remedy enshrined in Article 13, which 

See the observations ofthe third-party interveners, paragraphs 175-179 of the judgment. 
EL-MASRl V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 83 

SEPARATE OPINION 

includes a right of access to relevant information about alleged violations, 

both for the persons concerned and for the general public. 

5. The right to the truth is not a novel concept in our case-law, and nor is 

it a new right. Indeed, it is broadly implicit in other provisions of the 

Convention, in particular the procedural aspect of Articles 2 and 3, which 

guarantee the right to an investigation involving the applicant and subject to 

public scrutiny. 

6. In practice, the search for the truth is the objective purpose of the 

obligation to carry out an investigation and the raison d'être ofthe related 

quality requirements (transparency, diligence, independence, access, 

disclosure of results and scrutiny). For society in general, the desire to 

ascertain the truth plays a part in strengthening confidence in public 

institutions and hence the rule of law. For those concerned - the victims' 

families and close friends - establishing the true facts and securing an 

acknowledgment of serious breaches of human rights and humanitarian law 

constitute forms of redress that are just as important as compensation, and 

sometimes even more so. Ultimately, the wall of silence and the cloak of 

secrecy prevent these people from making any sense of what they have 

experienced and are the greatest obstacles to their recovery. 

7. A more explicit acknowledgment of the right to the truth in the 

context of Article 13 of the Convention, far from being either innovative or 

superfluous, would in a sense cast renewed light on a well-established 

reality. 

8. Today, the right to the truth is widely recognised by international and 

European human rights law. At United Nations level, it is set forth in the 

2006 International Convention for the Protection of All Persons from 

Enforced Disappearance (Article 24 § 2) and in the Set of Principles for the 

Protection and Promotion of Himian Rights through Action to Combat 

Impunity. Resolutions 9/11 and 12/12 on the right to the truth, adopted on 

24 September 2008 and 12 October 2009 respectively by the United Nations 

Human Rights Council, state that: "... the Human Rights Committee and the 

Working Group on Enforced or Involuntary Disappearances ... have 

recognized the right of the victims of gross violations of human rights and 

the right of their relatives to the truth about the events that have taken place, 

including the identification of the perpetrators of the facts that gave rise to 

such violations ...". 

9. The same is true at regional level. In the context of the American 

Convention on Human Rights, the right to the truth has been expressly 

acknowledged in the decisions of the Inter-American Commission on 

Human Rights in Velasquez Rodriguez v. Honduras (29 July 1988) and 

Contreras et al. v. El Salvador (31 August 2011). On the European scene, 

with reference first of all to the European Union, the Council Framework 

Decision of 15 March 2001 on the standing of victims in criminal 
84 EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT -

SEPARATE OPINION 

proceedings^ establishes a link between truth and dignity and states, in its 

Preamble, that "[t]he rules and practices as regards the standing and main 

rights of victims need to be approximated, with particular regard to the right 

to be treated with respect for their dignity, the right to provide and receive 

information, the right to understand and be understood ...". Within the 

Council of Europe, the Guidelines of 30 March 2011 on eradicating 

impunity for serious human rights violations pursue a similar approach. 

10. In these circumstances, we consider that the judgment's somewhat 

timid allusion to the right to the truth in the context of Article 3 and the lack 

of an explicit acknowledgment of this right in relation to Article 13 ofthe 

Convention give the impression of a certain over-cautiousness. 

Official Journal L 082, 23 May 2001. 
EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 85 

SEPARATE OPINION 

JOINT CONCURRING OPINION OF JUDGES 

CASADEVALL AND LOPEZ GUERRA 

We agree with the Grand Chamber ruling, as well as with the reasoning 

supporting it. We consider, however, that, as regards the violation of the 

procedural aspect of Article 3 ofthe Convention on account ofthe failure of 

the respondent State to carry out an effective investigation into the 

applicant's allegations of ill-treatment, no separate analysis as performed by 

the Grand Chamber in paragraph 191 of the judgment was necessary with 

respect to the existence of a "right to the truth" as something different from, 

or additional to, the requisites already established in such matters by the 

previous case-law ofthe Court. 

According to the Court's case law, as reflected in the present judgment 

(see paragraphs 182 et seq.), an investigation into alleged ill-treatment must 

in any event represent a serious attempt to establish the facts of the case 

concerning the cause ofthe injuries suffered and the identity ofthe persons 

responsible. It seems evident to us that all this required activity amounts to 

finding out the truth of the matter, irrespective of the relevance or 

importance of the particular case for the general public, and therefore a 

separate analysis ofthe right to the truth becomes redundant. 

The right to a serious investigation, equivalent to the right to the truth, 

derives from the protection provided by the case-law of the Court in the 

application ofthe Convention for victims of deprivation of life (Article 2) or 

of torture or inhuman or degrading treatment or punishment (Article 3); this 

applies equally in cases which have attracted wide public coverage and in 

other cases which have not been subject to the same degree of public 

attention. Therefore, as far as the right to the truth is concerned, it is the 

victim, and not the general public, who is entitled to this right as resulting 

from Article 3 ofthe Convention, in the light ofthe Court's case-law.