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

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text-indent:-17.85pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline }             FIRST SECTION           CASE OF ABU ZUBAYDAH v. LITHUANIA   (Application no. 46454/11)             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.     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 B.     The United States Supreme Court’s judgment in Rasul v. Bush C.     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 D.     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.     Restrictions on information about the applicant’s secret detention and his communication with the outside world B.     The applicant’s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah)   v.   Poland and supplemented by the 2014 US Senate Committee Report C.     The applicant’s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland , reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court D.     The applicant’s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 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 alleged rendition to Lithuania on 17 February or 18   February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006 (a)     The applicant’s submissions (i)     Rendition to Lithuania (17 or 18 February 2005) (ii)     Rendition from Lithuania (25 March 2006) (b)     Evidence before the Court (i)     The 2015 Reprieve Briefing (α)     As regards the colour-coded names of the CIA detention facilities and periods of their operation (β)     As regards the CIA prisoners’ transfers into Lithuania –     February 2005 transfers –     October 2005 transfer –     March 2006 transfer (ii)     Expert evidence (iii)     “Detention Site Violet” in the 2014 US Senate Committee Report 2.     Detention and treatment to which the applicant was subjected E.     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 F.     The applicant’s detention at the US Guantánamo Bay facility since 5 September 2006 to present G.     Psychological and physical effects of the HVD Programme on the applicant H.     Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts I.     Parliamentary inquiry in Lithuania 1.     The Seimas investigation and findings 2.     Extracts from transcripts of the Seimas’ debates on the CNSD Findings   J.     Criminal investigation in Lithuania 1.     Investigation conducted in 2010-2011 2.     Reopening of the investigation on 22 January 2015 and further proceedings V.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of the Republic of Lithuania B.     Criminal Code C.     Code of Criminal Procedure D.     Civil Code E.     The Law on Intelligence F.     The Statute of the Seimas G.     The Law on the Seimas Ad Hoc Investigation Commissions H.     The Constitutional Court’s case-law VI.     RELEVANT INTERNATIONAL LAW A.     Vienna Convention on the Law of Treaties B.     International Covenant on Civil and Political Rights C.     The United Nations 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 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.     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 1.     Reports published in 2002 2.     Reports published in 2005 3.     ABC News reports of 2009 4.     Other Reports (2009- 2011) B.     Lithuanian media IX.     INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA 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 Flautre Report and the 2012 European Parliament Resolution 4.     The 2013 European Parliament Resolution 5.     The 2015 European Parliament Resolution 6.   The October 2015 hearing before the LIBE 7.     The 2016 European Parliament Resolution C.     The 2007 ICRC Report D.     The 2010 UN Joint Study X.     SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT Witness A Witness A1 Witness A2 Witness A3 Witness A4 Witness B Witness B1 Witness B2 Witness B3 Witness B4 (also referred to as “person B” by the Government) Witness C Witness C1 Witness C2 (also referred to as “person C” by the Government) Witness D Witness D1 Witness E Witness E1 Witness F Witness F1 Witness G Witness G1 Witness G2 Witness H Witness H1 Witness K Witness L Witness M Witness N 1.     Questioning on 9 March 2010 2.     Questioning on 16 March 2010 Witness O 1.     Questioning on 9 March 2010 2.     Questioning on 10 March 2010 Witness P Witness Q Witness R Witness S Witness T 1.     Questioning on 2 March 2010 2.     Questioning on 16 March 2010 Witness U Witness U1 Witness V Witness X Witness Y Witness Z XI.     OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT A.     The 2011 CPT Report B.     The Lithuanian Government’s Response to the 2011 CPT Report C.     Mr Fava’s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah)   v.   Poland D.     Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor 1.     Record of on-site inspection of Project No. 1 of 17 March 2010. 2.     Record of the on-site inspection of Project No. 2 of 4 June 2010 E.     Resolution and Operational Action Plan of 25 July 2002 F.     Report on the incident of 6 October 2005 in Vilnius airport G.     Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009 H.     Letter from the Ministry of the Interior of 9 December 2009 I.     Letter from Palanga airport of 15 March 2010 J.     The Customs Department letter of 12 April 2010 K.     The SBGS letter of 27 April 2010 XII.     EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT A.     Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ” B.     Senator Marty C.     Mr J.G.S. D.     Mr Black   THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A.     Lithuania’s lack of jurisdiction and responsibility under the Convention in respect of the applicant’s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant’s lack of victim status 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 rule 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 credibility of evidence adduced by the applicant (b)     Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17   February 2005 and 25 March 2006 carried out extraordinary rendition missions (c)     Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility (i)     As regards the alleged existence of a CIA secret detention facility (ii)     As regards the applicant’s alleged secret detention in Lithuania (d)     Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme (e)     Lack of evidence of Lithuania’s knowledge of the CIA HVD Programme at the material time 2.     The applicant (a)     As regards the Government’s allegation of a lack of credibility of sources of information and evidence before the Court (b)     As regards the CIA-linked planes landing in Lithuania between 17   February 2005 and 25 March 2006 (c)     As regards the existence of a CIA secret detention facility in Lithuania and the applicant’s secret detention in Lithuania (d)     As regards the Lithuanian authorities’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme (e)     As regards Lithuania’s knowledge of the CIA HVD Programme at the material time B.     Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects C.     HFHR submissions D.     The parties’ positions on the standard and burden of proof 1.     The Government 2.     The applicant E.     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.     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 Lithuania (27   March 2002 to 17 or 18 February 2005) (a)     Period from 27 March 2002 to 22 September 2003 (b)     Whether the applicant’s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court 4.     As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006) (a)     Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006) (b)     Whether the applicant’s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court (i)     Preliminary considerations (ii)     Transfers and secret detention (iii)     The applicant’s treatment in CIA custody in Lithuania       5.     As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning Lithuania’s knowledge of and complicity in the CIA HVD Programme (a)     Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No. 2) (i)     Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme (ii)     Assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No. 2) (b)     Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning (c)     Special procedure for CIA flights (d)     Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” (e)     Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 (f)     Informal transatlantic meeting 6.     The Court’s conclusion as to the Lithuanian authorities’ knowledge of and complicity in the CIA HVD Programme III.     LITHUANIA’S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT’S VICTIM STATUS 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 Lithuanian Government’s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant’s victim status IV.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.     Procedural aspect of Article 3 1.     The parties’ submissions (a)     The Government (b)     The applicant 2.     Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” 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 (α)     Treatment to which the applicant was subjected at the relevant time (β)     Court’s conclusion as to Lithuania’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 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 VIII.     APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A.     Article 46 of the Convention B.     Article 41 of the Convention 1.     Damage 2.     Costs and expenses 3.     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 Abu Zubaydah v. Lithuania, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Kristina Pardalos,   Robert Spano,   Aleš Pejchal,   Egidijus Kūris,   Mirjana Lazarova Trajkovska,   Paul Mahoney, judges, and Abel Campos, Section Registrar, Having deliberated in private on 28 and 29 June 2016 and 10 April 2018, Delivers the following judgment, which was adopted on the last of these dates: PROCEDURE 1.     The case originated in an application (no. 46454/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah (“the applicant”), on 14   July 2011. 2.     The applicant was represented before the Court by Ms H. Duffy, a lawyer practising in The Hague, Mr G.B. Mickum IV, member of the District of Columbia and Virginia Bars, and Mr J. Margulies, member of the Illinois Bar. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3.     The applicant alleged, in particular: (i)     a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the Central Intelligence Agency of the United States (“the CIA”) to detain him secretly on its territory, thereby allowing the CIA to subject him to treatment that amounted to torture, incommunicado detention, various forms of mental and physical abuse and deprivation of any access to, or contact with, his family or the outside world; (ii)     a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the CIA to transfer him from its territory, thereby exposing him to years of further torture, ill-treatment, secret and arbitrary detention and physical abuse in the hands of the US authorities, as well as lack of any contact with his family; (iii)     a breach of Article 13 taken separately and in conjunction with Article 3 on account of Lithuania’s failure to conduct an effective investigation into his allegations of serious violations of Article 3 of the Convention. 4.     The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). 5.     On 14 December 2012 the President of the Second Section accorded priority to the application, in accordance with Rule 41 and gave notice of the application to the Government, in accordance with Rule 54 § 2 (b). 6.     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 (“HFHR”), Amnesty International (hereinafter also referred to as “AI”) and the International Commission of Jurists (hereinafter also referred to as “ICJ”). 7.     On 17 March 2015 the Chamber that had been constituted to consider the case (Rule 26 § 1) decided to ask the Government to submit documentary evidence, including declassified parts of the material from the criminal investigation into the applicant’s allegations that was conducted in Lithuania and flight data concerning the alleged landings of CIA rendition aircraft in Lithuania. The parties were also invited to produce any further evidence on which they wished to rely before the Court and make comments on the case in the light of the Court’s judgments in El-Masri (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR   2012), Al Nashiri v.   Poland (see Al Nashiri v. Poland , no. 28761/11, 24 July 2014), and Husayn (Abu Zubaydah) v. Poland (see Husayn (Abu Zubaydah) v. Poland , no.   7511/13, 24 July 2014). 8.     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. 9.     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 A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 10.     On 28 June 2016 the Chamber held a fact-finding hearing and took evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex. 11.     In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality of certain documents produced by the Lithuanian Government (Rule 33 § 2), in particular those relating to the criminal investigation, including a summary of witness evidence and some other material collected in the context of that investigation (see also paragraphs 178-199, 301-346, 357, 362, 365 and 367-368 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of all documents submitted by them should be maintained. The Court decided to invite the Government to prepare a redacted version of the confidential documents after the hearing and instructed the parties that at the public hearing confidentiality was to be respected in a manner which would not lead to disclosure of sources of evidence obtained in the criminal investigation or the identities of witnesses or third parties involved. 12.     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 Ms K . Bubnytė , Agent of the Government of the Republic of Lithuania to the European Court of Human Rights , Mr P. Griciūnas , the Vice Minister of Justice of the Republic of Lithuania, Mr E. Pašilis , the Prosecutor General of the Republic of Lithuania; (b )     for the applicant Ms H. Duffy, Counsel, Ms A. Jacobsen, Counsel. The Court heard addresses by Mr Griciūnas, Mr Pašilis and Ms   Duffy. 13.     The Government, in their oral submissions, stated that they wished to withdraw their request to apply Rule 33 § 2 in respect of all documents submitted by them, except to the extent necessary to ensure the protection of personal data. 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 elections of Section Presidents, Linos-Alexandre Sicilianos, 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 1971 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 the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 19-88 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Husayn (Abu Zubaydah) v. Poland , cited above, § 397; and Al   Nashiri v. Poland , cited above, § 397; see also paragraph 90 below). As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above) , in the present case 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 14 July 2011 evolved and partly changed during the proceedings before the Court (see paragraphs 111-117 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 Lithuania (see paragraphs 398-405 and 423-446 below). 17.     In consequence, the facts of the case as rendered below (see paragraphs 90-211 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 relied on its findings in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 304-349 below), observations of the parties, material available in the public domain (see paragraphs 234-263 below), and testimony of experts who had given oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 372-395 below). In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons: (1)     Senator Dick Marty, in his capacity as Rapporteur of the Parliamentary Assembly of the Council of Europe (“PACE”) in the inquiry into allegations of CIA secret detention facilities in the Council of Europe’s member States (hereinafter “the Marty Inquiry” – see paragraphs 269 ‑ 280 below); (2)     Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg, the former Commissioner for Human Rights of the Council of Europe, who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 266-274, 370-375 and 382-386 below), as well as an expert who had submitted a report on the applicant’s case in El-Masri (cited above, §   75) and who had given oral evidence before the Court in the cases of Husayn (Abu Zubaydah) v. Poland (cited above, §§ 42, 305-312 and 318-325) and Al Nashiri v. Poland (cited above, §§ 42, 311-318 and   324-331) 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 Lithuania and the case of Abu Zubaydah ”; (3)     Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the European Parliament Committee on Civil Liberties, Justice and Home Affairs’ (“LIBE Committee”) investigation of alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 284-291 and 387 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 126-145 and 372-395 below). III.     BACKGROUND TO THE CASE A.     The so-called “High-Value Detainee Programme” 20.     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” (see also paragraph 35 below) but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). 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 264-280 below). For the purposes of the present case, it is referred to as “the HVD Programme”. 21.     A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Husayn (Abu Zubaydah) v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-69 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009-2010 (see also paragraphs 34-56 below). 22.     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. 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   70 ‑ 89 below). 23.     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 (see also paragraphs 76, 80-81 and 92-96 below). However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named. The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying countries be redacted. The countries were accordingly listed by a single letter of alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA’s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names. 24.     The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown” (see also paragraph 166 below). 25.     The description of the HVD Programme given below is based on the CIA declassified documents that were available to the Court in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland , supplemented by the 2014 US Senate Committee Report. 1.     The establishment of the HVD Programme (a)     The US President’s memoranda (i)     Memorandum of 17 September 2001 26.     The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification (“the MON”) to authorise the Director of the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities”. Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques. 27.     Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the CTC, had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities. 28.     A CIA internal memorandum, entitled “Approval to Establish a Detention Facility for Terrorists”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “the best option”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time”. It anticipated that “in a foreign country, close cooperation with the host government will entail intensive negotiations” and warned that “any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility”. The memorandum recommended the establishment of a “short-term” facility in which the CIA’s role would be limited to oversight, funding and responsibility”. It further stated that the CIA would “contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments”. (ii)     Memorandum of 7 February 2002 29.     On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 226-231 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows: “... 2.     Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows: a.     I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva. ... c.     I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among ot