CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 septembre 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sDA30A789 { margin-top:30pt; margin-bottom:36pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7D73FE43 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s394C7864 { font-family:Arial; background-color:#ffff00 } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sB68460D { margin-top:12pt; margin-left:46.35pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:10pt } .s37D58556 { width:14.67pt; font:7pt 'Times New Roman'; display:inline-block } .s76AF6B1C { margin-top:12pt; margin-left:28.35pt; margin-bottom:12pt; text-align:justify; font-size:10pt } .sDC07F891 { margin-top:12pt; margin-left:28.35pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1B0D0B53 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s677DA8A { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8C50CFA1 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF0D62E79 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s6E0F97D0 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC273AADF { margin-top:18pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF74FB0AA { font-family:Arial; font-size:6.5pt } .sE007C52A { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE208486F { font-family:Arial; color:#ff0000 } .s95F1DE7F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB4693194 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sB853CD25 { font-family:Arial; font-size:9pt } .s7ED160F0 { text-decoration:none } .sF157F5DF { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super; color:#000000 } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .sC36A6361 { font-family:Arial; color:#000000 } .sF8BAA360 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:9pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7D05E333 { margin-top:36pt; margin-bottom:30pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9AB2A095 { margin-top:18pt; margin-left:29.2pt; margin-bottom:30pt; text-indent:-17.6pt; text-align:justify } .sF11CDCAF { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt }       THIRD SECTION Application no. 33234/12 Abd al Rahim Husseyn Muhammad AL NASHIRI against Romania lodged on 1 June 2012 STATEMENT OF FACTS THE FACTS 1.     The applicant, Mr Abd al Rahim Hussayn Muhammad al Nashiri, is a Saudi national, who was born in 1965. He is currently detained in the Internment Facility at the US Guantanamo Bay Naval Base in Cuba. The applicant is 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. A.     Background 1.     USS Cole bombing in 2000 2.     On 12 October 2000 a suicide terrorist attack on the United States Navy destroyer USS Cole took place in Aden, Yemen when the ship stopped in the 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 personnel. 3.     The applicant, considered to have been one of the most senior figures in Al’Qaeda, has been the prime suspect in the 2000 bombing. He has been suspected of masterminding and orchestrating the attack. 2.     MV Limburg bombing 4.     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 m 3 ) 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 applicant has been suspected of playing a role in the attack. 3.     The so-called “High Value Detainees Programme” 5.     After 11 September 2001 the US Government began operating a special interrogation and detention programme designated for suspected terrorists. On 17   September 2001 the US President signed a classified Presidential Finding granting the Central Intelligence Agency (“the CIA”) extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned. 6.     On an unspecified later date the CIA established a programme in the Counter-terrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as “the CTC program” (see also paragraphs 7-10 below) but, subsequently, it was also called “the High-Value Detainees Program” (“the HVD Programme”) (see also paragraph 9 below), 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 67 and followings below). For the purposes of the present case, it is referred to as “the HVD Programme”. 7.     On 24 August 2009 the American authorities released a report prepared by John Helgerson, the CIA inspector general, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September   2001-October 2003”, with appendices A-F, had previously been classified as “top secret”. This report also mentioned the applicant. It was considerably redacted; on the whole more than one-third of the 109-page document was blackened out. 8.     The report starts from a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the Counterterrorist Centre (“CTC”) to detain and interrogate terrorists, among which the applicant, at sites abroad. It continues as follows: “He also informed OIG that he had just learned of and dispatched a team to investigate [REDACTED] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorised interrogation techniques with a detainee, Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In   January   2003, OIG initiated a review of the Agency counter-terrorism detention and interrogation activities [REDACTED] and the incident with Al-Nashiri.” 9.     The background of that programme was explained in paragraphs 4-5 as follows: “4.     [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al’Qaeda high value detainees. 5.     [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al’Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated U.S. policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.” 10.     As explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium Value Detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High Value Detainees” (also called “HVD”) were given the highest priority for capture, detention, and interrogation. In some CIA documents they are also referred to as “High Value Targets” (“HVT”). The applicant fell into this category. 11.     In paragraph 6 of the report, in relation to the “legal parameters and constraints for interrogations” of suspected terrorists, it is stated that, following extensive consultations with the US Department of Justice and the National Security Council legal and policy staff, it was considered that “in most instances relevant to counter-terrorism detention and interrogation activities [redacted] the criminal prohibition against torture, ... is the controlling legal constraint on interrogations of detainees outside the United States”. It was further mentioned that in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10   specific “Enhanced Interrogation Techniques” (“the EITs”), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided “the foundation for the policy and administrative decisions that guided the CTC Program”. 12.     The EITs are described in paragraph 36 of the 2004 CIA Report as follows: “[1.]     The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator. [2.]     During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash. [3.]     The facial hold is used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes. [4.]     With the facial or insult slap, the fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe. [5.]     In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours. [6.]     Insects placed in a confinement box involve placing a harmless insect in the box with the detainee. [7.]     During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet. [8.]     The application of stress positions may include having the detainee sit on file floor with his legs extended straight out in front of him with his anus raised above his head or kneeling on the floor while leaning back at a 45 degree angle. [9.]     Sleep deprivation will not exceed 11 days at a time. [10.]     The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20.to 40 seconds and the technique produces the sensation of drowning and suffocation.” 13.     Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4   September 2003) refers to “legally sanctioned interrogation techniques”. It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”. The techniques included, in ascending degree of intensity: 1.     Standard measures (i.e. without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours). 2.     Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding. 14.     The CIA agents were authorised to use 4 standard interrogation techniques (sleep deprivation not exceeding 72 hours; continual use of light or darkness in a cell, loud music and white noise (background hum)) as identified in November 2002 without the Headquarters’ prior approval. The use of the EITs required a prior approval (paragraph 89 of the 2004   CIA Report). 14.     Appendix C to the 2004 CIA Report - Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1   August   2002 was prepared in connection with the application of the EITs to Abu Zubaydah, the first high-ranking Al’Qaeda prisoner who was to be subjected to those interrogation methods. It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ... the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code. 15.     The CIA 2004 Report further states that, subsequently, the CIA   Office of General Counsel (“OGC”) continued to consult with the US   Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, “this resulted in the production of an undated and unsigned document entitled “Legal principles Applicable to CIA Detention and Interrogation of Captured Al’Qaeda Personnel”. The document is still classified as top secret. Certain parts are, however, rendered in the 2004 CIA report. For instance, the report states the following: “... the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al’Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed ... The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.” 16.     The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion. 17.     As established in paragraph 51 of the report, in November 2002 CTC initiated training courses for CIA agents involved in interrogations. In January 2003 formal “Guidelines on Confinement Conditions for CIA Detainees” and “Guidelines on Interrogations Conducted Pursuant to [REDACTED]” were approved (paragraph 50). 18.     The application of the EITs to other terrorist suspects in CIA   custody, including the applicant in the present case, began in November 2002. 19.     On 6 September 2006 the US President delivered a speech announcing the closure of the HVD programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantanamo Bay. 4.     Role of Jeppesen Company 20.     Jeppesen Dataplan is a subsidiary of Boeing based in San Jose, California. According to the company’s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients. 21.     In the light of reports on rendition flights, a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism. 22.     In 2007, the American Civil Liberties Union (“the ACLU”) filed a federal lawsuit against Jeppesen Dataplan Inc. on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation. 23.     In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In   September   2010, on the US Government’s appeal, an 11-judge panel of the 9th Circuit Court of Appeals reversed the decision of April 2009. In   May   2011 the US   Supreme Court refused the ACLU’s request to hear the lawsuit. B.     The particular circumstances of the case 1.     The applicant’s capture, transfer to the CIA’s custody, his subsequent detention and further transfers during CIA custody 24.     At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates. 25.     By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report: “7.     [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.” 26.     Subsequently, US agents took him to a secret CIA prison in Afghanistan named “Salt Pit”. During his detention, the interrogators subjected him to prolonged stress standing positions, during which his wrists were shackled to a bar or hook in the ceiling above the head for at least two days. 27.     After a brief stay at the “Salt Pit”, US agents took him to yet another secret CIA prison in Bangkok, Thailand, where he remained until 4   December 2002. The CIA subjected the applicant to the EITs (see also paragraphs 9-16 above) from November 2002 until 4 December 2002. In particular, during two separate interrogation sessions they subjected him to the so-called “waterboarding”. 28.     The applicant was “rendered” to Poland under the HVD Programme on or about 5 December 2002. More detailed information on this aspect is provided in his application against Poland, n o 28761/11 (see paragraphs 27-32 of “Statement of facts”). 29.     After his transfer out of Poland, the applicant was detained in Rabat, Morocco, until 22 September 2003, when he was flown to the US Naval Base in Guantanamo Bay. 30.     On 27 March 2004 the CIA flew the applicant from Guantanamo Bay back to Rabat. 31.     Subsequently, according to the applicant, he was moved to the CIA secret detention facility in Bucharest, Romania, and remained there until he was finally transferred to Guantanamo Bay. 2.     Transfers to Romania and detention in the so-called “black site” in Bucharest 32.     The applicant submits that after his transfer out of Poland, he was held in various secret detention facilities abroad, including a CIA prison in Bucharest, named “Bright Light”, sometime between 6 June 2003 and 6   September 2006, when he was finally transferred to Guantanamo Bay. 33.     The specific location of the detention facility in Bucharest – the basement of a government building – became known to the applicant on 8   December 2011. 34.     As for the exact dates of the transfers to Romania during the period between 6 June 2003 and 6 September 2006 the applicant further refers to a 2007 Council of Europe report (“the 2007 Marty report” – see below), which identifies N313P as a “rendition plane”, which, according to the flight plans of 22   September 2003, had as destination Constanţa and Bucharest, according to the Romanian officials. 35.     The applicant, relying on official documents disclosed by the Romanian Civil Aeronautical Authority ( Autoritatea Aeronautica Civilă Română – AACR ) to the Romanian NGO, Association for the Defence of Human Rights – The Helsinki Committee (APADOR ‑ CH), states that those documents confirm that the flight N313P arrived at Băneasa airport in Bucharest, on 22 September 2003. In this connection, the applicant produced a letter from the Romanian Civil Aeronautical Authority to APADOR-CH dated 29 July 2009. The letter, in so far as relevant, reads as follows: “The Romanian Civil Aeronautical Authority located in (...) represented by (...) in compliance with the stipulations of the court decision no. 3580 of 15 December 2008 pronounced by Bucharest District Court, we hereby present in the annex to this document the answers to your inquiries included in address no. 261/07.08.2008. Annex to the address no. 19602 of 29.07.2009 General specification: The data provided below do not indicate with certainty that these flights were carried out. According to the regulations in effect and applicable on the respective dates, AACR does not have any document that would identify the actual performance of these flights. The information represents planned intentions that AACR was notified about. ... 01.01.2003 – 31.12.2003 N313P – 2 flights N478GS – 1 flight N379P – 1 flight N85VM – we do not have any records of the requested information N227SV - we do not have any records of the requested information N2189M – 2 flights 01.01.2004 – 31.12.2004 N313P – 2 flights N478GS – we do not have any records of the requested information N379P – we do not have any records of the requested information N85VM – we do not have any records of the requested information N227SV - we do not have any records of the requested information N2189M – we do not have any records of the requested information Answer for point 3: 01.01.2003 – 31.12.2003 N313P – 2 flights 1. Flight itinerary (departure sites, stop sites, destination place): Constanţa - Rabat Airport(s) in Romania where it landed: Băneasa The date of landing and the date on take-off: 23.09.2003; we do not hold any recordings of the date when it took off Flight purpose: private non-commercial Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: -           in Romania, it is not mandatory to report the number of people (crew and passengers) -           Crew – -           Passengers: 9 (according to the date provided by the applicant) 2. Flight itinerary (departure sites, stop sites, destination place): Szczytno – Constanţa Airport(s) in Romania where it landed: Băneasa The date of landing and the date of take-off: 22.09.2003; we do not hold any recordings of the date when it took off Flight purpose: private non-commercial Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: -           in Romania, it is not mandatory to report the number of people (crew and passengers) -           Crew – -           Passengers: 9 (according to the date provided by the applicant) ... 01.01.2004 – 31.12.2004 N313P – 2 flights Flight itinerary (departure sites, stop sites, destination place): we do not hold any records of the departure site – Timişoara Airport(s) in Romania where it landed: Timişoara The date of landing and the date on take-off: 25.01.2004; we do not hold any recordings of the date when it took off Flight purpose: maintenance refuelling stop Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off: -           Crew – we do not hold any records of the requested information -           Passengers – we do not hold any records of ...” 36.     The applicant further refers to several international reports that disclose evidence in relation to various “CIA-related aircrafts” operating rendition flights. 37.     Among others, he states that the 2007 European Parliament report noted that a flight with registration number N478GS suffered an accident on 6 December 2004 when landing in Bucharest – the aircraft reportedly took off from Bagram Air Base in Afghanistan – and its seven passengers disappeared following the accident among which the “passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with ammunition”. 38.     The prisoners to be held in CIA prison, including the applicant, were flown to Bucharest and brought to “Bright Light” in vans. CIA operatives drove down a side road, entered the building compound through a rear gate that led to the actual prison and transferred the prisoners to the basement. The basement of the building consisted in six prefabricated cells on springs, keeping them slightly off balance and causing disorientation among some prisoners held there. Each cell had a clock arrow pointing to Mecca. 39.     The applicant was subjected to torture and inhuman and degrading treatment while he was held incommunicado in a secret prison on Romanian territory. He describes these treatments as indicated below at paragraph 46. 40.     The use of the EITs on the applicant and his ill-treatment, in particular threats and subjection to prolonged stress positions at the relevant time when he was, as he alleges, held in Romania is also described in the International Committee for the Red Cross (“the ICRC”) Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February   2007 (“the 2007 ICRC Report”), based on interviews with the applicant and 13 other high-value detainees after they were transferred to Guantanamo Bay (for a detailed description see paragraphs 92 and followings below). 3.     Final transfer to the US Gunatanamo Bay Naval Base 41.     No later than 6 September 2006, Romanian authorities assisted the CIA in secretly transferring the applicant from Bucharest. There was apparently no attempt by the Romanian Government to seek diplomatic assurances from the United States to avert the risk of his being subjected to further torture, incommunicado detention, an unfair trial, or the death penalty when in the US custody. 42.     The applicant states that that the Romanian Government granted licences and overflight permissions to facilitate the CIA rendition flights and that the Romanian Civil Aeronautical Authority officials collaborated with Jeppesen (and, by extension, with Jeppesen’s client, the CIA) by accepting the task of navigating this disguised flight into Romanian airports. 4.     The applicant’s detention in Guantanamo Bay and his trial before the Military Commission 43.     On 6 September 2006 the US President publicly acknowledged that 14   “high value detainees”, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantanamo Bay Internment Facility. 44.     Since an unspecified date, presumably in September 2006, the applicant has been detained in the US Naval Base in Guantanamo Bay. By that time, he had already been held in undisclosed detention for nearly 4   years. 45.     On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “enemy combatant” (i.e. an individual who was part of or supporting Taliban or Al’Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “personal representative” was appointed for him, but this person did not act as counsel and the applicant’s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing. 46 .     According to a partially redacted transcript of that hearing, the applicant stated that he “[had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him. He also stated that he had made up stories during the torture in order to get it to stop and that “[f]rom the time I [had been] arrested five years ago, they [had] been torturing me. It [had] happened during interviews. One time they [had] tortured me one way and another time they [had] tortured me in a different way”. The applicant’s reply to the President of the Tribunal’s request to describe the methods that were used, is largely redacted from the transcript of the hearing. The unredacted portion however states that: “before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body”. He also stated that “they used to drown me in water. So I used to say yes, yes.” Further details relating to his own description of his treatment are redacted from the transcript. 44.     On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000. 47.     On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision. 48.     On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission. 49.     Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government’s method of transporting the applicant to legal proceedings in Guantanamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel. 50.     Shortly after this motion was filed, the applicant’s arraignment –which signifies the start of his trial before a military commission – was set for 9 February 2009. 51.     On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration’s review of all detentions at Guantanamo Bay. In response to this order, the Government requested a 120-day postponement for the 9   February 2009 arraignment. 52.     On 25 January, 2009 the military judge assigned to the applicant’s military commission denied the Government’s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant’s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody. Hours after this notice was filed, on 5 February 2009, the US   Government officially withdrew charges from the military commission, thus removing the applicant’s case from the military judge’s jurisdiction. 53.     Military commission rules applicable to the applicant have changed since the time he was transferred from Poland and are now governed by the Military Commission Act of 2009, which was enacted on 28 October 2009. However, they still provide for the death penalty and retain many of the deficiencies associated with the previous military commission rules. 54.     The United States Secretary of Defense or his designee acts as the convening authority for a given commission, approves charges for trial by a military commission and selects the commission members who are required to be members of the armed forces on or recalled to active duty, and as such are subordinate to the Secretary of Defense. Military commissions still apply only to non-US citizens. The current rules place no limits on the length of time within which a suspect must be charged or tried. Indeed, they expressly exempt military commissions from speedy trial requirements. Furthermore, the current military commission rules allow for the accused to be denied access to classified information or evidence and, unlike US   federal court procedures which bar the admission of hearsay, they expressly permit hearsay evidence and do not bar convictions based mainly on such evidence. 55.     The applicant submits that, given the widespread torture and abuse of US terrorism suspects, whose statements could be introduced as hearsay evidence against him, he is in consequence unable to confront witnesses against him. Unlike US federal court procedures which bar the admission of evidence derived from coerced statements, the current military commission rules admit evidence derived from coerced statements if that evidence would have been otherwise obtained and the use of such evidence would be consistent with the interests of justice. Moreover, the military commissions will still be held in the remote location of Guantanamo Bay, thereby significantly hindering public access to the proceedings against the applicant. Finally, there is considerable uncertainty associated with the current military commission rules, which were enacted as recently as October 2009 and have been applied so far in only three cases, none of which involved the death penalty. 56.     In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantanamo Bay. 57.     On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators in the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15   May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со ‑ conspirator in the USS Cole bombing. 58.     The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “convening authority” for the military commissions, for decision whether to reject the charges or to refer some, all or none of them for trial before the military commission. 59.     On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011. In the applicant’s view, this implied that he would shortly thereafter make a decision on whether capital charges should be referred to a specified military commission for trial. 60.     The military commission hearing in the applicant’s case began on 17   January 2012. 5.     International inquiries relating to CIA secret detentions and renditions of suspected terrorists in Europe (a)     Human Rights Watch Reports 61 .     On 6 November 2005 the Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”). It was given 2 days after the Washington Post had published material revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries”. 62.     The statement read, in so far as relevant, as follows: “Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post’s allegations that there were detention facilities in Eastern Europe. Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research. According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. The records show that the N313P plane landed the next day, September 23, 2003, at the Mihail Kogalniceanu military airfield in Romania. The flight records indicate that the plane flew on to Morocco the same day, and then to Guantanamo Bay. The Department of Defense, which releases information about all detainee transfers to Guantanamo, released no statement about a transfer to Guantanamo around this date   ... According to our research, the United States has been using the Mihail Kogalniceanu airfield in Romania for operations in Iraq and Afghanistan since 2002, and the base has been closed to the public and journalists since early 2004. Secretary of Defense Donald Rumsfeld visited Romania and the Mihail Kogalniceanu base in October 2004. The N313P plane also flew from Kabul to Timisoara airport in Romania on January 25, 2004. On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ... Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in the Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees. Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States. Human Rights Watch emphasizes that there is no doubt that secret detention f