CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2014

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text-indent:-17pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .sAC0AA09B { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; font-size:11pt } .sD6E1DABD { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sC8702D41 { width:154.61pt; display:inline-block } .sB6A960C { width:25.31pt; display:inline-block } .s7EA9840A { width:221.01pt; display:inline-block }         FORMER FOURTH SECTION           CASE OF AL NASHIRI v. POLAND   (Application no. 28761/11)             JUDGMENT         STRASBOURG   24 July 2014     FINAL   16/02/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   PROCEDURE A.     Written and oral procedure B.     The Polish Government’s failure to produce information and documentary evidence in the present case and in Husayn (Abu   Zubaydah) THE FACTS I.     EVIDENCE BEFORE THE COURT II.     BACKGROUND TO THE CASE A.     Terrorist attacks of which the applicant has been suspected 1.     USS Cole bombing in 2000 2.     MV Limburg bombing B.     The so-called “High-Value Detainees Programme” 1.     The establishment of the HVD Programme 2.     Enhanced Interrogation Techniques 3.     Standard procedures and treatment of “High Value Detainees” in CIA custody (combined use of interrogation techniques) 4.     Conditions of detention at CIA detention facilities 5.     Closure of the HVD Programme C.     Role of Jeppesen Company D.     Military Commissions 1.     Military Order of 13 November 2001 2.     Military Commission Order no. 1 3.     The 2006 Military Commissions Act and the 2009 Military Commissions Act E.     Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate III.     THE PARTICULAR CIRCUMSTANCES OF THE CASE A.     The applicant’s capture, transfer to the CIA’s custody and initial detention (from the end of October to 4 December 2002) B.     Transfer to Poland and detention in the “black site” in Stare Kiejkuty (from 4/5 December 2002 to 6 June 2003) 1.     Transfer (4-5 December 2002) 2.     Detention and ill-treatment (5 December 2002- 6 June 2003) C.     Transfer from Poland on 6 June 2003 D.     The applicant’s further transfers during CIA custody (from 6   June 2003 to 6 September 2006) E.     The applicant’s detention in Guantánamo Bay and his trial before the Military Commission (from 6 September 2006 to present) 1.     Hearing before the Combatant Status Review Tribunal 2.     Trial before the military commission F.     Parliamentary inquiry in Poland 1.     Parliamentary inquiry in Poland 2.     Views regarding the inquiry expressed by international organisations (a)     Council of Europe (b)     European Parliament G.     Criminal investigation in Poland 1.     Information supplied by the Polish Government in their written and oral submissions made in the present case and in the case of Husayn (Abu Zubaydah)   v.   Poland 2.     Facts supplied by the applicant in the present case and supplemented by the facts related in the case of Abu Zubaydah v.   Poland and certain materials available in the public domain 3.     Views regarding the investigation expressed by international organisations (a)     United Nations (b)     Amnesty International IV.     RELEVANT DOMESTIC LAW A.     Criminal Code 1.     Territorial jurisdiction 2.     Offence of abuse of power 3.     Statute of limitation 4.     Protection of secrecy of investigation (offence of disseminating information of criminal investigation) B.     Code of Criminal Procedure 1.     Prosecution of offences 2.     Classified materials C.     Laws on classified information and related ordinance 1.     The laws on classified information (a)     Situation until 2 January 2011 – “the 1999 Act” (b)     Situation as from 2 January 2011 – “the 2010 Act” 2.     The 2012 Ordinance D.     Law on intelligence agencies V.     RELEVANT INTERNATIONAL LAW A.     Vienna Convention on the Law of Treaties Article 26 “ Pacta sunt servanda ” Article 27 Internal law and observance of treaties B.     International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts Article 7 Excess of authority or contravention of instructions Article 14 Extension in time of the breach of an international obligation Article 15 Breach consisting of a composite act Article 16 Aid or assistance in the commission of an internationally wrongful act C.     International Covenant on Civil and Political Rights D.     The United Nations Torture Convention E.     UN General Assembly Resolution 60/147 VI.     SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 A.     United Nations Organisation 1.     Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16   January 2002 2.     Statement of the International Rehabilitation Council for Torture 3.     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) B.     Other international organisations 1.     Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 2.     Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002 3.     Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002 4.     International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003 5.     Amnesty International Report 2003 – United States of America, 28   May 2003 6.     Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003 7.     Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003 8.     Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003 9.     International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 10.     Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 11.     Human Rights Watch – List of Ghost Prisoners Possibly in CIA Custody of 30 November 2005 C.     Parliamentary Assembly of the Council of Europe Resolution no.   1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 D.     Media reports and articles 1.     International media 2.     Polish media 3.     Interview with Mr A. Kwaśniewski, former President of Poland VII.     INTERNATIONAL INQUIRIES RELATING TO CIA SECRET DETENTIONS AND RENDITIONS OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING POLAND A.     Council of Europe 1.     Procedure under Article 52 of the Convention 2.     Parliamentary Assembly’s inquiry – the Marty Inquiry (a)     The 2006 Marty Report (b)     The 2007 Marty Report (c)     The 2011 Marty Report B.     European Parliament 1.     The Fava Inquiry 2.     The 2007 European Parliament Resolution 3.     The 2011 European Parliament Resolution 4.     The Flautre Report and the 2012 European Parliament Resolution 5.     The 2013 European Parliament Resolution C.     The 2007 ICRC Report D.     United Nations Organisation 1.     The 2010 UN Joint Study 2.     The 2010 UN Human Rights Committee Observations E.     The CHRGJ Report VIII.     OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT A.     Polish Border Guard’s letter of 23 July 2010 B.     TDIP transcript of “Exchange of views with [M.P.], former director of Szczytno/Szymany airport in Poland” C.     Senator Pinior’s affidavit submitted to the Court in the case of Husayn (Abu Zubaydah) IX.     EXTRACTS FROM TESTIMONIES OF EXPERTS AND WITNESS HEARD BY THE COURT A.     Mr Fava B.     Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Poland and the cases of Al Nashiri and Abu Zubaydah ” C.     Senator Marty D.     Mr J.G.S. E.     Senator Pinior THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION OF DOMESTIC REMEDIES A.     The parties’ arguments 1.     The Government 2.     The applicant B.     The Court’s assessment II.     OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND A.     The parties’ submissions 1.     The Government 2.     The applicant B.     The Court’s assessment 1.     Applicable principles deriving from the Court’s case-law (a)     General principles (b)     Cases where national security or confidentiality concerns are involved 2.     Application of the above principles to the present case III.     THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE A.     The parties’ positions on the facts and evidence 1.     The Government 2.     The applicant B.     Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects C.     The Court’s conclusion on the lack of dispute as to the facts and evidence D.     The Court’s assessment of the facts and evidence 1.     Applicable principles deriving from the Court’s case-law 2.     Preliminary considerations concerning the assessment of the facts and evidence in the present case 3.     Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory (a)     Whether the applicant’s allegations concerning the events preceding his alleged detention in Poland (capture and initial detention from the end of October to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court (b)     Whether the applicant’s allegations concerning his transfer to Poland, secret detention at the “black site” in Stare Kiejkuty and transfer from Poland to other CIA secret detention facilities elsewhere (4/5 December 2002 – 6   June 2003) were proved before the Court 4.     Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme (a)     Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities (b)     Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA (c)     The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials (d)     Poland’s lack of cooperation with the international inquiry bodies (e)     Informal transatlantic meeting (f)     Relations of cooperation between the Polish intelligence and the CIA (g)     Circumstances surrounding detainees transfer and reception at the black site (h)     Other elements (i)     Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody 5.     Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme IV.     RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME A.     The parties’ submissions 1.     The Government 2.     The applicant B.     Third-party intervener – AI/ICJ C.     Applicable general principles deriving from the Court’s case-law 1.     As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 2.     As regards the State’s responsibility for an applicant’s removal from its territory 3.     Conclusion V.     ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION A.     Procedural aspect of Article 3 1.     The parties’ submissions (a)     The Government (b)     The applicant 2.     The third-party interveners (a)     Helsinki Foundation for Human Rights (b)     The UN Special Rapporteur 3.     The Court’s assessment (a)     Admissibility (b)     Merits B.     Substantive aspect of Article 3 1.     The parties’ submissions (a)     The Government (b)     The applicant 2.     The Court’s assessment (a)     Admissibility (b)     Merits VI.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A.     The parties’ submissions 1     The Government 2.     The applicant B.     The Court’s assessment 1.     Admissibility 2.     Merits (a)     Applicable general principles deriving from the Court’s case-law (b)     Application of the above principles to the present case VII.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A.     The parties’ submissions 1.     The Government 2.     The applicant B.     The Court’s assessment 1.     Admissibility 2.     Merits VIII.     ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION A.     The parties’ submissions B.     The Court’s assessment 1.     Admissibility 2.     Merits (a)     Applicable general principles deriving from the Court’s case-law (b)     Application of the above principles to the present case IX.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.     The parties’ submissions 1.     The Government 2.     The applicant B.     The Court’s assessment 1.     Admissibility 2.     Merits (a)     Applicable principles deriving from the Court’s case-law (b)     Application of the above principles to the present case X.     ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 6 TO THE CONVENTION A.     The parties’ submissions 1.     The Government 2.     The applicant B.     The Court’s assessment 1.     Admissibility 2.     Merits (a)     Applicable general principles deriving from the Court’s case-law (b)     Application of the above principles to the present case XI.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION XII.     APPLICATION OF ARTICLE 46 OF THE CONVENTION XIII.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage B.     Costs and expenses C.     Default interest FOR THESE REASONS, THE COURT, UNANIMOUSLY, In the case of Al Nashiri v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Vincent A. De Gaetano,   Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 2 and 3 December 2013 and 1, 2 and 8   July 2014, Delivers the following judgment, which was adopted on the last of these dates. PROCEDURE A.     Written and oral procedure 1.     The case originated in an application (no. 28761/11) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Saudi Arabian national of Yemeni descent, Mr   Abd   Al Rahim Hussayn Muhammad Al Nashiri (“the applicant”), on 6   May 2011. 2.     The applicant was represented before the Court by Mr   J.A. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative (“the OSJI”), Mr R. Skilbeck, barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Ms   A.   Singh, attorney, member of the New York Bar and Senior Legal Officer at the OSJI, and also by Ms N. Hollander, attorney, member of the New Mexico Bar. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant alleged violations of various provisions of the Convention, in particular: (i)     Articles 3, 5 and 8 in that Poland had enabled the CIA to detain him at the Stare Kiejkuty detention facility, thereby allowing the CIA to subject him to treatment that had amounted to torture, incommunicado detention and deprivation of any access to, or contact with, his family; (ii)     Articles 2 and 3 of the Convention, Article 1 of Protocol No. 6 to the Convention and also Articles 5 and 6 of the Convention in that Poland had enabled the CIA to transfer him from Poland to other CIA-run detention facilities, despite a real risk of his being subjected to further torture, ill ‑ treatment, incommunicado detention, the imposition of the death penalty and flagrantly unfair trial; (iii)     Articles 3 and 13 of the Convention in that Poland had failed to conduct an effective and thorough investigation into his allegations of serious violations of his rights protected by the Convention during his detention on Polish territory. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). 5.     On 30 November 2011 the Vice-President of the Section gave priority to the application, in accordance with Rule 41. 6 .     On 10 July 2012 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government. 7.     The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from the Helsinki Foundation for Human Rights, the International Commission of Jurists and Amnesty International, as well as from the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism (“the UN Special Rapporteur”). 8.     On 22 January 2013 the Chamber decided to invite the parties and the third-party interveners to submit comments on the case in the light of the Grand Chamber’s judgment in El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012. 9.     On 9 July 2013 the Chamber decided that the case would be examined simultaneously with that of Husayn (Abu Zubaydah) v. Poland (no.   7511/13). 10.     Subsequently, the Chamber, having consulted the parties, decided that a public hearing on the admissibility and merits be held simultaneously in both cases (Rule 63 § 1) and invited the UN Special Rapporteur to take part in the hearing. The hearing date was set for 3 December 2013. The Chamber also decided, of its own motion, to hear evidence from a witness and from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact-finding hearing was set for 2 December 2013. 11.     On 14 October 2013 the Government asked the Court to exclude, under Rule 63 § 2 of the Rules of Court, the press and the public from all oral hearing on the grounds that, in the special circumstances of the cases, the publicity would prejudice the interests of justice. The applicant, who was asked to submit his comments, opposed the Government’s request, stating that they had failed to provide sufficient reasons. He relied on the principle of open justice. 12.     Later, in respect of the Government’s request for the exclusion of the press and the public from all oral hearing, the Chamber decided that that hearing would be public, pursuant to Rule 63 § 1 of the Rules of Court. It further decided that a separate hearing in camera be held on 2 December 2013. 13.     In this connection, the President of the Chamber directed that a verbatim record of all the hearings be made under Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 14.     On 2 December 2013 the Court held a fact-finding hearing and heard evidence from experts and a witness, in accordance with Rule A1 §§ 1 and 5 of the Annex to the Rules of Court. On the same day it subsequently held a hearing in camera under Rule 63 § 2 of the Rules of Court and heard the parties’ submissions on the evidence taken. Those hearings were held in in the Human Rights Building, Strasbourg. 15.     A public hearing took place in the Human Rights Building, Strasbourg, on 3 December 2013 (Rule 59 § 3). There appeared before the Court:   (a)   for the respondent Government : Mr   A. Nowak-Far ,     Undersecretary of State in the Ministry of Foreign Affairs, Ms   J. Chrzanowska ,     Agent of the Government before the European Court of Human Rights, Mr   J. Śliwa ,     Deputy Kraków Prosecutor of Appeal , Ms   A. Mężykowska ,     co-Agent of the Government before the European Court of Human Rights, Ms   K. Górska-Łazarz ,   Adviser, Ministry of Foreign Affairs .   (b)   for the applicant Al Nashiri: Ms   A. Singh,       Counsel , Mr   M. Pietrzak ,     Counsel, Mr   R. Skilbeck ,     Counsel, Ms   N. Hollander ,     Counsel.   (c)   for the applicant Husayn (Abu Zubaydah): Mr   P. Hughes ,     Counsel, Mr   B. Jankowski ,     Counsel, Ms   H. Duffy ,       Counsel, Mr   J. Margulies ,     Counsel , Mr   C. Black ,       Adviser .   (d)   for the third party in Al Nashiri : Mr   B. Emmerson ,     UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ms   A. Katulu ,     Adviser.   The Court heard addresses by Mr Nowak-Far, Mr Śliwa, Ms Singh, Mr   Pietrzak, Mr Hughes, Mr Jankowski and Mr Emmerson. 16.     On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained in the former Fourth Section (Rule 52 § 1). B.     The Polish Government’s failure to produce information and documentary evidence in the present case and in Husayn (Abu   Zubaydah) 17.     On 10 July 2012, on giving notice of the application to the Government (see paragraph 6 above), the Chamber requested the Government to supply, on a confidentiality basis under Rule 33 § 2 of the Rules of Court, materials showing the grounds on which the applicant had been granted injured person ( pokrzywdzony ) status in the investigation opened on 11 March 2008 (see also paragraphs 131–172 below) and indicating whether the fact of his detention in Poland had been established in that investigation and, if so, on what it was based. In relation to allegations that there was a document (agreement) on the setting up and running of a secret CIA prison on Polish territory prepared by the Polish authorities, the Chamber, in case that document existed, requested the Government to supply a copy on a confidentiality basis under Rule 33 § 2 of the Rules of Court. It also asked the Government whether that document had been included in the evidence gathered during the investigation. 18.     In this connection, the Chamber further decided to impose confidentiality, under Rule 33 § 2 of the Rules of Court and in the interests of national security in a democratic society, on the following documents: 1)     any documents that might be produced by the Government in the future relating to the alleged CIA rendition operations in Poland or other States and the alleged participation of Poland or other States in that operation; 2)     any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who had given evidence, had been charged or were otherwise implicated in the investigation; and 3)     any classified materials that in the future could be requested by the Court from the Government or would be submitted of their own motion to the Court. 19.     The Government were also informed that should they wish to seek specific security measures to ensure the full secrecy of that material, the Court was prepared to have such wish accommodated through appropriate procedural and practical arrangements. 20.     On 5 September 2012 the Government filed their observations on the admissibility and merits of the case. In a cover letter attached to their observations they asked the Court to restrict, under Rule 33 § 2 of the Rules of Court, public access to the Government’s submissions, as well as to the applicant’s observations filed in reply, in the interest of national security in a democratic society and in view of the need to protect the secrecy of the criminal investigation conducted in Poland. 21.     The Government also submitted that, since the criminal investigation in Poland was pending, they were not in a position to address in detail the Court’s questions or produce documentary evidence requested by the Court. Instead, in the same letter they stated as follows: “[The Government] also wish to inform the Court that, to supplement the present position, an additional material will be prepared, by no later than 1 October 2012, by the Appellate Prosecutor’s Office in Kraków with regard to the course of the proceedings no. Ap VDs.12/12/S for Judges of the Court examining the present application. However, due to the need to protect the secrecy of the investigation, the material will be classified. As such, it may be made available only to Judges of the Court specified by name, in a manner and at a location that are in conformity with Polish domestic law governing the protection of classified information. Furthermore, the Government wish to inform the Court that pursuant to Article 156 § 5 of the Code of Criminal Procedure, in the course of a preparatory proceedings case files may in exceptional circumstances be made available to third parties, subject to the approval of the prosecutor. The Government hereby declare their willingness to offer assistance in the scope of preparing and filing the relevant applications to make case files of preparatory proceedings available to the specified Judges of the Court.” 22.     On 25 September 2012 the President of the Chamber acceded to the Government’s request under Rule 33 § 2. However, the Government were reminded that the Chamber had already imposed confidentiality on certain specific documents requested from the Government and that those documents had not been produced. Nor had the Government asked for an extension of the relevant time-limit. 23.     In respect of the procedure proposed for the provision of the “additional material” the Government’s attention was drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States. The Government were also reminded that, in accordance with the Court’s case-law, the respondent Government could not rely on domestic legal impediments to justify a failure to furnish the facilities necessary for the Court’s examination of the case. It was also recalled that they had already been informed that the Court was prepared to accommodate their security concerns by means of appropriate security arrangements. 24.     By 1 October 2012 the Government had not supplied any “additional material” referred to in their letter of 5 September 2012 (see paragraph 21 above). Nor did they produce the documents initially requested by the Court (see paragraphs 17-18 above). 25.     On 31 October 2012 the applicant’s representatives asked the Court to reconsider the status of confidential and ex parte submissions in the case. First, they objected to the Polish Government’s proposal to submit documents to the Court on an ex parte basis, submitting that this was not envisaged in the Convention or the Rules of Court. Second, they drew the Court’s attention to the fact that the Government had expressly conceded that they could not provide the documents requested by the Court and that their written observations did not contain any information which was subject to the secrecy of the investigation or which otherwise required confidentiality. On the contrary, their submissions had been limited to information largely in the public domain and legal arguments which should not be withheld from the public. 26.     The Government, having been invited by the Court to state their position on whether the confidentiality of the parties’ pleadings should be maintained, responded on 29 November 2012. They asked the Court to uphold the restrictions on the public access to the file. 27.     In respect of the “additional material” prepared by the Polish prosecution authority, they stated: “Finally, the Government would like to address the question of ex parte submission which is offered by the Government in their letter of 5 September 2012. The classified document in question was prepared by the Appellate Prosecutor in Kraków in the declared time-limit and this information was passed to the Registrar of the Fourth Section during his visit in Warsaw. Therefore hereby the Government wish to inform that the said material is available to Judges of the Court and the Government wish to kindly ask the Court to specify the name of Judges and appropriate time when they could acquaint themselves with the document. Simultaneously the Government wish to declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure. The above-mentioned classified document was not created by the Government as such, but by the Appellate Prosecutor’s Office in Kraków. Therefore, it is available in the Secret Registry of the Prosecutor General Office, an organ independent of the Government. In order to protect the secrecy of the conducted investigation only the authorized persons can acquaint themselves with the deposited material.” 28.     On 22 January 2013 the Chamber decided to discontinue the application of Rule 33 § 2 of the Rules of Court and to lift confidentiality in respect of the observations submitted by the Government and the applicant. The parties were informed that this was without prejudice to any future decision of the Chamber or its President to impose confidentiality on any pleadings or materials that might subsequently be produced in the case where reasons were shown to justify such a decision. 29.     On 14 February 2013 the Government renewed their proposal to assist the Court in applying to the Kraków Prosecutor of Appeal for access to the investigation file and other materials – to which they referred to as a “special document” – prepared for the Court by the prosecution authority. They stated that they wished to “declare once again their willingness to offer the Court their assistance in preparing and filing the applications for access to the case file”. In reply, the Court informed the Government that the conditions that they had attached to the Court’s access to those documents and the manner they had proposed for the Court to proceed were not in accordance with the Court’s Rules and practice. It was recalled that, in the Court’s letter of 25   September 2012, the Government’s attention had been drawn to the fact that the Court was the master of its procedure and that in processing evidence it was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States. The Government were accordingly invited to produce the “special document” prepared by the Kraków Prosecutor of Appeal. It was stressed that, as they were aware, that document was to be included in the Court’s file as a material which would be considered to be, and would remain, confidential pursuant to the Chamber’s decision of 10 July 2012 to impose confidentiality on, inter alia , “any documents to be submitted by the Government revealing the scope and course of the investigation conducted in this respect in Poland or identifying persons who ha[d] given evidence, ha[d] been charged or were otherwise implicated in the investigation”. It was once again stressed that the Court was prepared to accommodate the Government’s security considerations by means of all appropriate security arrangements. Lastly, the Government’s attention was drawn to the Contracting Parties’ duty under Article 38 of the Convention to “furnish all necessary facilities” for the effective conduct of the proceedings before the Court and of the parties’ duties to cooperate with the Court, to comply with an order of the Court and to participate effectively in the proceedings, as provided in Rules   44A, 44B and 44C. 30.     On 16 September 2013 the Government filed their written observations on the admissibility and merits in Husayn (Abu Zubaydah ). In those observations, in the section entitled “Means available to the Court to acquaint itself with case files of preparatory proceedings” they again suggested that the Court should apply to the domestic authorities for access to the investigation file. They also offered to ask the prosecution authority to prepare for the Court a document, to which they referred to as a “comprehensive extract from the non-confidential part of the case files Ap.   V Ds. 12/12/S.”. The relevant part of their pleading read as follows: “[T]he Government would like to indicate that there are means available for the Court to acquaint itself with the case file Ap. V Ds 12/12/S. In the course of domestic preparatory proceedings, case files may be made available, in exceptional circumstances, to third parties, subject to the approval of the prosecutor. The Government wish to declare their willingness to offer the Court their assistance in preparing and filling the applications for access to the case files of the preparatory proceedings pursuant to Article 156 § 5 of the Code of Criminal Procedure. ... Moreover, the Government would like to inform the Court that, upon its request, they will ask the Appellate Prosecutor’s Office in Kraków to draw up a comprehensive extract from the non-confidential part of the case files Ap. V Ds. 12/12/S. Such document will be classified in order to protect the secrecy of the investigation. Consequently, the document could be made available to the Court in the seat of the General Prosecutor’s Office in Warsaw or in the Permanent Representation of the Republic of Poland to the Council of Europe in Strasbourg. ...” 31.     On 3 October 2013 the Court informed the Government that it had decided to hold an oral hearing in the present case and in the case of Husayn (Abu Zubaydah) simultaneously. The Government and the applicants were informed that if they intended to rely on any additional documentary evidence at the hearing, it should be submitted at least three weeks before the hearing or be incorporated verbatim in their oral submissions. With reference to the Government’s observations on “Means available to the Court to acquaint itself with case files of preparatory proceedings” in Husayn (Abu Zubaydah) , in particular regarding the conditions that they attached to the Court’s access to the documents and information necessary for the examination of the cases, including the non-confidential part of the investigation file, the Government were informed that the Chamber, having considered their submissions, wished to remind them of the Polish State’s duties under Article 38 of the Convention (duty to furnish all necessary facilities for the Court’s examination of the case) and under Rule 44A (duty to cooperate with the Court). It also wished to remind them of the content of Rule 44B (failure to comply with an order of the Court) and Rule 44C (failure to participate effectively). In that context, as already observed in the present case in regard to similar restrictions imposed by the Government on the Court’s access to evidence, it was recalled that those conditions and the manner proposed for the Court to proceed were not in accordance with the Court’s Rules and practice and that in processing evidence the Court was bound by and followed its procedure under the Convention and the Rules of Court, not the procedure of the Contracting States. The Chamber also decided to remind the Government again that, according to the Court’s established case-law, the Contracting States should furnish all necessary facilities to make possible a proper and effective examination of applications and that they could not rely on domestic impediments to justify a failure to discharge this d