CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mai 2018

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display:inline-block } .s915B8526 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s48A8B0C6 { margin-top:6pt; margin-bottom:6pt } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s2840CEAF { margin-top:12pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIRST SECTION           CASE OF AL NASHIRI v. ROMANIA   (Application no. 33234/12)                 JUDGMENT     STRASBOURG   31 May 2018       FINAL   08/10/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. PROCEDURE THE FACTS I.     PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS II.     EVIDENCE BEFORE THE COURT III.     BACKGROUND TO THE CASE A.     Terrorist attacks of which the applicant has been suspected 1.     USS Cole bombing in 2000 2.     MV Limburg bombing in 2002 B.     The so-called “High-Value Detainee Programme” 1.     The establishment of the HVD Programme (a)     The US President’s memoranda (i)     Memorandum of 17 September 2001 (ii)     Memorandum of 7 February 2002 (b)     Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002 (c)     Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 2.     Enhanced Interrogation Techniques (a)     Description of legally sanctioned standard and enhanced interrogation techniques (b)     Expanding the use of the EITs beyond Abu Zubaydah’s interrogations 3.     Standard procedures and treatment of “high-value detainees” in CIA custody (combined use of interrogation techniques) 4.     Conditions of detention at CIA “black sites” 5.     The scale of the HVD Programme 6.     Closure of the HVD Programme C.     The United States Supreme Court’s judgment in Rasul v. Bush D.     Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 1.     Jeppesen Dataplan Inc. 2.     Richmor Aviation 3.     Other companies E.     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 4.     Publicly expressed concerns regarding the procedure before the military commission F.     Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate 1.     Course of the review 2.     Findings and conclusions IV.     THE PARTICULAR CIRCUMSTANCES OF THE CASE A.     The applicant’s capture, transfer to the CIA’s custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in Al   Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report B.     The applicant’s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1.     Transfer from Poland to Morocco and detention in Morocco (from 6   June to 23 September 2003) 2.     Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004) C.     The applicant’s alleged secret detention at a CIA “black site” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1.     The applicant’s initial submissions 2.     The applicant’s alleged rendition to Romania on the plane N85VM on 12 April 2004 3.     Detention and treatment to which the applicant was subjected 4.     The applicant’s alleged rendition from Romania on 6 October or 5   November 2005 D.     The applicant’s further transfers during CIA custody (until 5   September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 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.     Psychological effects of the HVD Programme on the applicant G.     Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts H.     “Detention Site Black” in the 2014 US Senate Committee Report I.     Parliamentary inquiry in Romania J.     Criminal investigation in Romania 1.     Submission by the Government of confidential documents from the investigation file 2.     The course of the investigation according to documentary evidence produced by the Government V.     RELEVANT DOMESTIC LAW A.     Criminal Code 1.     Territorial jurisdiction 2.     Prohibition of torture and offence of unlawful deprivation of liberty B.     Code of Criminal Procedure VI.     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 Covenant on Civil and Political Rights C.     The UN Torture Convention D.     UN Geneva Conventions 1.     Geneva (III) Convention 2.     Geneva (IV) Convention E.     International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts F.     UN General Assembly Resolution 60/147 VII.     SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 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 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.     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 C.     International non-governmental 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 VIII.     SELECTED MEDIA REPORTS AND ARTICLES A.     International media B.     Romanian media C.     Der Spiegel’s publications in 2014 and 2015 IX.     INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA 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 6.     The 2015 European Parliament Resolution 7.     LIBE delegation’s visit to Romania (24-25 September 2015) 8.     Follow-up to the visit 9.     The 2016 European Parliament Resolution C.     The 2007 ICRC Report D.     United Nations 1.     The 2010 UN Joint Study 2.     The 2015 UN Committee against Torture’s Observations X.     TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT A.     Transcript of witness X’s statement made on 18   September 2013 B.     Transcript of testimony given by witness Y on 4 May 2015 C.     Transcript of witness Z’s statement made on 17 September 2013 D.     Transcript of testimony given by witness Z on 18 June 2015 E.     Transcripts of statements from other witnesses 1.     Witness A 2.     Witness B 3.     Witness C 4.     Witness D 5.     Witness E 6.     Witness F 7.     Witness G 8.     Witness H 9.     Witness I 10.     Witness J 11.     Witness K 12.     Witness L 13.     Witness M 14.     Witness N 15.     Witness O 16.     Witness P 17.     Witness Q 18.     Witness R XI.     OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT A.     RCAA letter of 29 July 2009 B.     List of twenty-one “suspicious flights” produced by the Government C.     Documents concerning the N313P rendition mission on 16-28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation D.     The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts) E.     Mr Hammarberg’s affidavit of 17 April 2013 Affidavit of Thomas Hammarberg F.     Dossier (Memorandum) of 30 March 2012 provided by Mr   Hammarberg to the Romanian Prosecutor General (extracts) G.     Mr Hammarberg’s replies to questions put to him in writing by the Court and the parties 1.     The Court’s questions 2.     The Romanian Government’s questions 3.     The applicant’s questions H.     Senator Marty’s affidavit of 24 April 2013 I.     The 2015 LIBE Briefing XII.     EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT A.     Mr Fava B.     Presentation by Senator Marty and Mr J.G.S. “Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri” C.     Senator Marty D.     Mr J.G.S. E.     Mr Black THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A.     Romania’s lack of jurisdiction and responsibility under the Convention in respect of the applicant’s alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania 1.     The Government 2.     The applicant 3.     The Court’s assessment B.     Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 1.     The Government (a)     Non-exhaustion of domestic remedies (b)     Non-compliance with the six-month term 2.     The applicant (a)     Non-exhaustion of domestic remedies (b)     Non-compliance with the six-month rule 3.     The Court’s assessment II.     THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A.     The parties’ positions on the facts and evidence 1.     The Government (a)     Lack of evidence demonstrating that a CIA ”black site” operated in Romania (i)     Contradictory statements as to the “life cycle” of the alleged CIA ”black site” in Romania (ii)     Contradictory statements as to the location of the alleged CIA ”black site” in Romania (b)     Inconsistencies in the applicant’s account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania (c)     Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe’s Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents (d)     Lack of evidence demonstrating that certain planes landing in Romania between 22   September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions (e)     Lack of evidence demonstrating that the Romanian authorities entered into “secret cooperation agreements” with the CIA and cooperated in the execution of the HVD Programme (f)     Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights (g)     Lack of evidence of Romania’s knowledge of the CIA HVD Programme at the material time 2.     The applicant (a)     As regards the existence of a CIA secret detention facility in Romania and the applicant’s secret detention in Romania (b)     As regards the alleged inconsistencies in the applicant’s account regarding the dates of his rendition to and from Romania and his secret detention in Romania (c)     As regards the planes landing in Romania between 22 September 2003 and 5 November 2005 (d)     As regards the Government’s allegation of a lack of credibility of sources of information and evidence (e)     As regards Romania’s’ cooperation with the CIA and its complicity in the HVD Programme (f)     As regards Romania’s knowledge of the HVD Programme at the material time B.     Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of the US practices in respect of captured terrorist suspects C.     The parties’ positions on the standard and burden of proof 1.     The Government 2.     The applicant 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 establishment of the facts and assessment of evidence in the present case 3.     As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his transfers and secret detention by the CIA before his rendition to Romania (mid-October 2002-April 2004) (a)     Period from mid-October 2002 to 6 June 2003 (b)     Whether the applicant’s allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo) were proved before the Court 4.     As regards the establishments of the facts and assessment of evidence relevant to the applicant’s allegations concerning his rendition by the CIA to Romania, secret detention in Romania and transfer by the CIA out of Romania (12   April 2004 to 6 October or 5 November 2005) (a)     Whether a CIA detention facility existed in Romania at the time alleged by the applicant (22 September 2003 – beginning of November 2005) (b)     Whether the applicant’s allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12   April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court (i)     Preliminary considerations (ii)     Transfers and secret detention (iii)     The applicant’s treatment in CIA custody in Romania 5.     As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning Romania’s knowledge of and complicity in the CIA HVD Programme (a)     Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a “subsidy” from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme (i)     Agreement to host a CIA detention facility, request for and acceptance of a “subsidy” from the CIA and provision of premises for the CIA (ii)     Acquiescence with some elements of the HVD Programme (b)     Assistance in disguising the CIA rendition aircraft’s routes through Romania by means of the so-called “dummy” flight planning (c)     Special procedure for CIA flights (d)     Informal transatlantic meeting (e)     Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” (f)     Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 6.     The Court’s conclusions as to Romania’s alleged knowledge of and complicity in the CIA HVD Programme III.     ROMANIA’S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION A.     The parties’ submissions B.     The Court’s assessment 1.     As regards jurisdiction 2.     As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 3.     As regards the State’s responsibility for an applicant’s removal from its territory 4.     Conclusion as to the Romanian Government’s preliminary objection that Romania lacks jurisdiction and responsibility under the Convention IV.     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)     The UN Special Rapporteur (b)     APADOR-CH (c)     Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” (d)     Media Groups 3.     The Court’s assessment (a)     Admissibility (b)     Merits (i)     Applicable general principles deriving from the Court’s case-law (ii)     Application of the above principles to the present case 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 (i)     Applicable general principles deriving from the Court’s case-law (ii)     Application of the above principles to the present case (a)     Treatment to which the applicant was subjected at the relevant time (β)     Court’s conclusion as to Romania’s responsibility V.     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 VI.     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 VII.     ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 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 VIII.     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 general principles deriving from the Court’s case-law (b)     Application of the above principles to the present case IX.     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 X.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION XI.     APPLICATION OF ARTICLE 46 OF THE CONVENTION A.     The parties’ submissions B.     The Court’s assessment XII.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage B.     Costs and expenses C.     Default interest ANNEX I: List of abbreviations used in the Court’s judgment ANNEX II: List of references to the Court’s case-law In the case of Al Nashiri v. Romania, The European Court of Human Rights (Former First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Kristina Pardalos,   Robert Spano,   Aleš Pejchal,   Mirjana Lazarova Trajkovska,   Paul Mahoney, judges,   Florin Streteanu, ad hoc judge, and Abel Campos, Section Registrar, Having deliberated in private on 29 June 2016 and 11 April 2018, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in an application (no. 33234/12) against Romania 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 Husseyn Muhammad Al Nashiri (“the applicant”), on 1 June 2012. 2.     The applicant was represented 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, Ms   N.   Hollander, attorney, member of the New Mexico Bar, and also by Ms   D.O. Hatneanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, 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 Romania had enabled the Central Intelligence Agency of the United States (“the CIA”) to detain him on its territory at a secret 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 Romania had enabled the CIA to transfer him from its territory to other CIA-run detention facilities elsewhere, despite a real risk of his being subjected to further torture, ill-treatment, incommunicado detention, a flagrantly unfair trial and the imposition of the death penalty; (iii)     Article 3 alone and in conjunction with Article 13 and also Articles   5 and 8 of the Convention in that Romania had failed to conduct an effective and thorough investigation into his allegations of serious violations of his rights protected by the Convention during his secret detention on Romanian territory. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court) 5.     On 4 September 2012 the President of the Third Section gave priority to the application, in accordance with Rule 41. 6.     On 18 September 2012 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government, in accordance with Rule 54 § 2 (b). 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 Amnesty International, (hereinafter also referred to as “AI”) and the International Commission of Jurists (hereinafter also referred to as “ICJ”), the Association for the Defence of Human Rights in Romania – the Helsinki Committee (“APADOR-CH”), the twelve media organisations (“Media Groups”), represented by Howard Kennedy Fsi LLP, and the United Nations (UN) Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (“the UN Special Rapporteur”). 8.     On 26 May 2015 the President of the Section decided to invite the parties to submit further observations on certain factual developments. They were also invited to make comments on the case in the light of the Court’s judgment in the case of Al Nashiri v. Poland (no. 28761/11, 24 July 2014). 9.     Following the re-composition of the Court’s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2. 10.     Iulia Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28). The President accordingly appointed Mr Ioan Florin Streteanu to sit as an ad hoc judge in her place (Article 26 § 4 of the Convention and Rule 29 § 1). 11.     Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016. The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact ‑ finding hearing was set for 28 June 2016. In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule 8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 12.     On 28 June 2016 the Chamber held a fact-finding hearing and heard evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex. In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality (Rule 33 § 2) of certain documents produced by the Romanian Government, in particular annexes to the Romanian Senate Report of 2007 (“the 2007 Romanian Senate Report” – see also paragraphs 165-169 below) and material collected in the context of a criminal investigation carried out by the Romanian authorities (see paragraphs 171-190 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of annexes nos.   1-11 to the 2007 Romanian Senate Report in the redacted versions supplied by them could be lifted and that transcripts of evidence given by witnesses during the investigation could be referred to in public, without using any element that would allow the witnesses to be identified. That included their names and surnames and their exact workplaces or institutions that they represented. As regards the material from the investigation file, the Government in addition produced an English summary of annexes with documents submitted by them. They did not object to the content of the summary being referred to in public, in particular in the parties’ oral submissions at the public hearing. The Court acceded to the Government’s requests. 13.     A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3). There appeared before the Court: (a)     for the Government   Mrs C. Brumar , Agent of the Government, Ministry of Foreign Affairs, Mrs A.-L. Rusu , Chargé d’affaires a.i., Deputy to the Permanent Representative of Romania to the Council of Europe, Counsel, Mrs M. Ludușan , judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr V.H.D. Constantinescu , judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr R. Bodnar , Bucharest Airports National Company, Counsel, Mr M. Simionis , Romanian Civil Aviation Authority, Counsel , Mr A. Ștefan , Romanian Air Traffic Services Administration, Counsel ; (b)     for the applicant   Mr   R. Skilbeck , Counsel, Ms   A. Singh , Counsel, Ms   D.-O . Hatneanu , Counsel , Ms   N. Hollander , Adviser . The Court heard addresses by Ms Brumar, Ms Luduşan, Ms Singh and Ms Hatneanu. 14.     The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and the elections of Section Presidents, Linos-Alexandre Sicilianos, the President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3). THE FACTS 15.     The applicant was born in 1965 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba I.     PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS 16.     It is to be noted that in the present case involving, as the applicant’s previous application before the Court, complaints of secret detention and torture to which he was allegedly subjected during the extraordinary rendition operations by the United States’ authorities (see paragraphs 22-70 and 78-97 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland , no. 28761/11, § 397, 24 July 2014; see also Husayn (Abu Zubaydah) v. Poland , no. 7511/13, § 397, 24 July 2014). As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities’ custody, based on various publicly available sources of information. The applicant’s version of the facts as stated in his initial application of 1 June 2012 evolved and partly changed during the proceedings before the Court (see paragraphs 115-116 below). The respondent Government contested the applicant’s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Romania (see paragraphs 395-402 and 419-443 below). 17.     Consequently, the facts of the case as set out below (see paragraphs   98-164 below) are based on the applicant’s account supplemented by various items of evidence in the Court’s possession. II.     EVIDENCE BEFORE THE COURT 18.     In order to establish the facts of the case the Court has relied on its findings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 298-325 below), observations of the parties, material available in the public domain (see paragraphs 212-245 below), an affidavit made by Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, a dossier that he produced for the Romanian Prosecutor General and his written reply to questions put to him by the Court and the parties (see paragraphs 333-353 below), an affidavit made by Senator Dick Marty (see paragraph 354 below) and testimony of experts who gave oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 359-393 below). In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons: (1)     Mr Giovanni Claudio Fava, in his capacity as the Rapporteur of the European Parliament’s Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of Prisoners (“the TDIP”), the relevant inquiry also being called “the Fava Inquiry” and so referred to hereinafter (see paragraphs 268-277 below). (2)     Senator Dick Marty, in his capacity as Rapporteur of the Council of Europe’s Parliamentary Assembly (“PACE”) in the inquiry into the allegations of CIA secret detention facilities in the Council of Europe’s member States (hereinafter the “Marty Inquiry” – see paragraphs 249-267 below). (3)     Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 249-267 and 334-342 below), as well as an expert who had submitted a report on the applicant’s case in El-Masri v. the former Yugoslav Republic of Macedonia (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §   75, ECHR 2012) and who had given oral evidence before the Court in the cases of Al Nashiri v.   Poland (cited above, §§ 42, 311-318 and 324-331) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 42, 305-312 and 318-325) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general. In the course of giving evidence to the Court, Senator Marty and Mr   J.G.S also gave a PowerPoint presentation entitled “Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri ”. (4)     Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the investigation by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ (“LIBE Committee”) into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 286-287 and   353-356 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non ‑ governmental organisation Reprieve. 19.     The relevant passages from the experts’ testimony are reproduced below (see paragraphs 104, 107-108, 110, 119, 121, 124-125,129-132 and   357-391 below). III.     BACKGROUND TO THE CASE A.     Terrorist attacks of which the applicant has been suspected 1.     USS Cole bombing in 2000 20.     On 12 October 2000 a suicide terrorist attack on the United States Navy guided-missile destroyer USS Cole took place in Aden, Yemen when the ship stopped in Aden harbour for refuelling. It was attacked by a small bomb-laden boat. The explosion opened a 40 foot hole in the warship, killing 17   American sailors and injuring 40 other personnel. The US authorities considered the applicant to have been one of the most senior figures in al-Qaeda and a suspect in this bombing. He has been suspected of masterminding and orchestrating the attack (see also paragraphs 142-156   below). 2.     MV Limburg bombing in 2002 21.     On 6 October 2002 a French oil tanker MV Limburg , while it was in the Gulf of Aden some miles offshore, was rammed by a small explosives ‑ laden boat which detonated. The tanker caught fire and approximately 90,000 barrels (14,000 sq.m) of oil leaked into the Gulf of Aden. One crew member was killed and twelve others injured. The style of the attack resembled the suicide USS Cole bombing described above. The US   authorities have suspected the applicant of playing a role in the attack (see also paragraphs 142-156   below). B.     The so-called “High-Value Detainee Programme” 22.     On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Program”) or the “Rendition Detention Interrogation Program” (“the RDI Program”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 250-265 below). For the purposes of the present case, it is referred to as “the HVD Programme”. 23.     A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Al Nashiri v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-71 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009-2010 (see also paragraphs 36-58 below). 24.     On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program”. The full Committee Study – as stated therein “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program”, which is more than 6,700 pages long, remains classified (see also paragraphs 23-25 above). The declassified Executive Summary (hereinafter “the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate’s review of the CIA’s activities involved in the HVD Programme see paragraphs 79-98 below). 25.     The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case. However, all names of the countries on whose te