CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 décembre 2012

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clear:both } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sCBC8409E { margin-top:0pt; margin-left:28.4pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s84B8346 { margin-top:0pt; margin-left:42.6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sB853CD25 { font-family:Arial; font-size:9pt } .s163D3B2F { font-family:Arial; font-size:9pt; text-decoration:underline; color:#0069d6 } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt }       SECOND SECTION Application no. 46454/11 ABU ZUBAYDAH against Lithuania lodged on 14 July 2011 STATEMENT OF FACTS   The applicant, Mr Abu Zubaydah, is a stateless Palestinian who was born in 1971 in Saudi Arabia and is currently detained in Guantánamo Bay, Cuba. He is represented before the Court by Mr S.   Kostas, Ms V.   Vandova, Ms H.   Duffy, Mr G.B. Mickum, Ms A.   Jacobsen and Mr J. Margulies, lawyers practising in London, New York and Chicago. A.     The circumstances of the case 1.     The facts of the case, as submitted by the applicant, may be summarised as follows. 2.     Following the terrorist attacks in the United States in 2001, Abu Zubaydah has been described as the first “high-value detainee” (HVD) to be captured and questioned by the United States Central Intelligence Agency (“the CIA”). The applicant’s lawyers noted at the outset that the restrictions on information regarding the entirety of Abu Zubaydah’s detention necessarily mean that this case presents a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. Several factors heighten the already significant challenges related to uncovering and presenting evidence in a case of this nature: (i)     first, the clandestine nature of the rendition operation coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme; (ii)     second, the lack of an investigation by the Lithuanian authorities, in whose hands much of the necessary information rests, impeding access to information; and (iii)     third, the unprecedented restrictions on communication between Abu Zubaydah, his counsel and the Court, precluding the presentation of information or evidence directly from the applicant or in relation to the client. Only US counsel with Top Secret security clearance may have access to the client, and all information obtained from the client is presumptively classified, so that counsel are not able to disclose to other members of the legal team or to the Court any information obtained from the client or other classified sources. A request for release of an affidavit from Abu Zubaydah is pending in this case, but, as is routinely the case, this request will involve the need for litigation in a US court. In addition, if the document is released, it is likely to be heavily redacted. Attempts to declassify drawings and writings by the applicant during his period of detention and torture have been unsuccessful. The applicant’s lawyers thus described Abu Zubaydah as “a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case. His story was therefore to be told by reference principally to publicly available documentation” [1] . 1.     The applicant’s version of events as to his capture, detention and rendition to Lithuania 3.     The applicant’s lawyers submitted that on 28 March 2002 agents of the USA and Pakistan seized Abu Zubaydah from a house in Faisalabad, Pakistan. In the course of the operation he was shot several times, in the groin, thigh and stomach, resulting in critical wounds, and taken into the custody of the CIA. 4.     Prior to his rendition to Lithuania, the CIA held Abu Zubaydah in secret detention facilities in four countries on four continents: after capturing him in Pakistan in 2002, the CIA transferred him to a secret facility in Thailand, from where he was transferred to a facility in Poland on 4   December 2002, and on 22 September 2003 to a secret CIA facility at Guantánamo Bay. It is reported that in Spring 2004, in anticipation of the US Supreme Court granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court, he was again secretly transferred, this time to a facility in Morocco, where he was detained secretly for almost a year. 5.     In July 2011, the Associated Press reported that “according to two former US intelligence officials” Abu Zubaydah was held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania followed his detention in Morocco. On the basis of flight information obtained from flight control agencies pursuant to a freedom of information request by non-governmental organisations Access Info Europe, Reprieve and INTERIGHTS, the applicant’s lawyers believed that Abu Zubaydah was transferred from Morocco to Lithuania in early 2005. (a)     Transfer of Abu Zubaydah to Lithuania 6.     Relying on publicly available materials as regards flight plans which they had provided to the Court, the applicant’s lawyers submitted that planes were contracted by the CIA to perform rendition flights starting in February   2005. On 15-19   February 2005, two planes with the registration numbers N787WH and N724CL, at the behest of Computer Science Corporation, travelled from the USA to Lithuania via Morocco and back to the USA. 7.     On the basis of data obtained from the Federal Aviation Authority and Eurocontrol, the applicant’s lawyers submitted that on 15   February 2005 a plane with the registration number N787WH flew from the USA to the Azores, Portugal. On 17   February that aircraft headed to Malaga, Spain, arriving in Rabat, Morocco, in the early hours of the following day. After two hours in Morocco it proceeded to Romania. The aircraft left Romania in the afternoon of 18   February and arrived in Palanga, Lithuania, at 6.09 p.m. Eurocontrol and Palanga airport records indicated that the plane left Palanga shortly afterwards, at 7.30 p.m., and eventually returned to the United States. The applicant’s lawyers noted that although the Lithuanian parliamentary inquiry (see paragraphs 63-67 below) cited flight N787WH from Romania to Palanga in Lithuania on 18   February 2006, neither that inquiry nor any comment by Lithuanian prosecutors referred to the plane having been to Morocco. 8.     On the basis of the data from the Federal Aviation Authority and Eurocontrol the applicant’s lawyers also submitted that another aircraft, which they linked to the CIA, registered as N724CL, flew from the United States via the Azores, and the Canary Islands (Spain). The plane arrived in Rabat just before 2 a.m. on 17   February. The aircraft left after 3 a.m., stopped in Amman, Jordan, and then arrived in Vilnius around 6.15 p.m. the same day. After 90 minutes it left Vilnius for Iceland and then returned to the United States via Canada. The applicant’s lawyers noted that the presence in Lithuania of N724CL was not mentioned by the Lithuanian parliamentary inquiry. 9.     On the basis of the above flight plans, of which they gave details in the application to the Court, the applicant’s lawyers argued that from 17   February 2005 Abu Zubaydah was held in Lithuania in a secret detention facility constructed and equipped specifically for CIA detention, in accordance with prior authorisation from high-level Lithuanian authorities. (b)     Transfer of Abu Zubaydah from Lithuania 10.     The applicant’s lawyers stated that it appeared from the data provided by Eurocontrol that at 10.25 p.m. on 25   March 2006 a Boeing 737 with the registration number N733MA landed in Palanga airport from Porto, Portugal. After 90 minutes in Palanga, the aircraft left Lithuanian territory for Cairo, Egypt. The plane had been chartered by Computer Sciences Corporation and was operated by Miami Air International, Florida. 11.     In their letter of 10   September 2012 the applicant’s lawyers noted a finding during the Lithuanian parliament inquiry to the effect that a Boeing   737 with the registration number N733MA arrived in Palanga on 25   March 2006. No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”. 12.     The applicant’s lawyers submitted that after Abu Zubaydah was transferred by extraordinary rendition from Lithuanian territory he was detained in an undisclosed facility in a third country, from where he was later transferred to United States custody at Camp 7 at the US naval base at Guantánamo Bay, Cuba. The applicant remains there in incommunicado detention to this day. The applicant has never been charged with a crime, nor has he been provided with an effective opportunity to challenge the lawfulness of his detention. 2.     The applicant’s treatment during rendition and secret detention 13.     The applicant’s lawyers noted that there were no publicly available government documents specifically detailing his treatment during his detention in Lithuania, unlike as regards previous periods of Abu Zubaydah’s detention in CIA custody. This gap in the public record was partly a consequence of the fact that he was detained in Lithuania after the CIA Office of Inspector General had investigated and reported on unauthorised abusive treatment of detainees in CIA custody. Moreover, Lithuania’s role in the CIA programme was first publicly reported more than two years after the Council of Europe’s investigative reports (see paragraphs 54-62 below). There has also been no meaningful investigation by the Lithuanian authorities. Neither Lithuania nor the United States have provided any information about the specific conditions and treatment to which they subjected Abu Zubaydah during his detention in Lithuania. Also, restrictions imposed by the United States currently preclude any direct evidence from the applicant in this respect being shared with the Court. United States counsel had requested the US authorities to declassify an affidavit by Abu Zubaydah so it can be submitted to the Court in support of this application, but they were still awaiting a response from the various declassification agencies. 14.     Despite these challenges and impediments to having access to and presenting evidence, the applicant’s lawyers maintained that clear inferences could be drawn from certain categories of evidence that were available to the Court (the references to that evidence are given in paragraphs 63-83 of the application). The first category related to information concerning the treatment of the applicant at the hands of the same principal custodians, before and after his period of detention in Lithuania. The United States Government documents extensively described Abu Zubaydah’s ill-treatment in CIA detention, in general and at other sites, from which it was possible to infer that elements of this treatment continued while he was detained in Lithuania. This inference was further supported by the second category of available information that related to the regime of detention conditions and interrogation techniques that were authorised for use on CIA detainees such as Abu Zubaydah during the period of his detention in Lithuania. (a)     Abu Zubaydah’s treatment in the CIA Programme 15.     The applicant’s lawyers noted that inquiries into the United States’ abuses of human rights after 11 September 2001 have often focused on the authorisation and nature of Abu Zubaydah’s interrogation, in large part because the CIA’s “enhanced interrogation” programme was first used and tested on Abu Zubaydah, and the conditions of his detention, interrogation and torture represented a significant shift in United States policy. The lawyers provided the Court with references to publicly available documents which, in their view, showed a systematic approach to rendition, detention and interrogation which utilised methods amounting to torture and ill-treatment. They also noted that the Court had access to later documents, created after the period of Abu Zubaydah’s initial ill-treatment, which, in their view, showed that a systematic regime of abuse was in place during the period of his detention in Lithuania. 16.     The lawyers for the applicant submitted that after Abu Zubaydah’s capture the CIA proceeded to test a number of coercive techniques on him by way of experiment. Only weeks before these experiments on Abu Zubaydah began, the United States Deputy Defence Secretary Paul Wolfowitz issued a directive removing the requirement that treatment of detainees adhere to the Nuremberg Directives for Human Experimentation. A former national security officer who was familiar with the treatment of Abu Zubaydah has explained that for the CIA, Abu Zubaydah was “...an experiment. A guinea pig. I’m sure you’ve heard that a lot. There were many enhanced interrogation [methods] tested on him that were never discussed before we settled on the ten [techniques].” After months of torture, the United States Department of Justice Office of Legal Counsel issued a memorandum on 1 August 2002 authorising the CIA’s use of ten identified “enhanced interrogation techniques” on Abu Zubaydah, and provided general guidelines for determining the lawfulness of additional enhanced interrogation techniques. 17.     The applicant’s lawyers also relied on the CIA’s Inspector General Report and a report by the United States Senate Armed Services Committee, among other official and publicly available United States Government documents, which specified in some detail the nature and effect of his torture and ill-treatment. The applicant’s lawyers submitted that the CIA interrogators, among other things: chained Abu Zubaydah to a chair for a period of weeks; slammed him by the neck into concrete walls; forced him into a small black box for two hours and in a somewhat larger black box for up to eighteen hours; hung him naked from the ceiling; and kept him awake for eleven consecutive days, spraying him with cold water if he fell asleep; blasted rock music at him at top volume; stripped him naked; made his room so cold that he turned blue; denied him pain medication for his injuries; subjected him to “waterboarding” simulated drowning, doing so eighty-three times in one month. 18.     According to publicly available reports, the CIA videotaped the interrogation of Abu Zubaydah “day and night”, including during the use of waterboarding and while he was sleeping in his cell. Reports suggest that the purpose of recording Abu Zubaydah was to gain insight into his “physical reaction” to the techniques used against him. 19.     Shortly after Abu Zubaydah’s transfer from CIA custody to United States military custody, in September 2006, President Bush first acknowledged that the CIA had secretly detained him in facilities outside the United States. President Bush stated that he would not reveal “the specifics of this programme, including where these detainees have been held and the details of their confinement,” but he did state that the CIA had resorted to “an alternative set of procedures” and “tough” interrogation techniques, in an effort to obtain information from Abu Zubaydah and others held by the CIA. 20.     President Bush later acknowledged in his memoir that, acting on the advice of lawyers and others, he had personally authorised the CIA to use waterboarding or simulated drowning on Abu Zubaydah. 21.     The applicant’s lawyers submitted that the United States Government had prohibited disclosure of Abu Zubaydah’s first-hand description of his experience in the CIA programme. One of the few public sources of Abu Zubaydah’s description of his experience was an International Committee of the Red Cross (ICRC) memorandum which was disclosed without authorisation. After his transfer to Guantánamo Bay in September 2006, the ICRC interviewed him and thirteen other victims of CIA secret detention and described the statements in a memorandum dated 14 February 2007. The ICRC determined that Abu Zubaydah was the only detainee who was subjected to all the authorised enhanced interrogation techniques. 22.     Abu Zubaydah described to the ICRC some of the abuse he endured while in CIA custody, in part as follows: “I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me.... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.” 23.     The ICRC report suggested that Abu Zubaydah understood that he was the first person to be subjected to this treatment in United States custody, and that there were few predetermined limits to how far his abuse might go: “I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt as though they were experimenting and trying out techniques to be used later on other people.” (b)     Authorised treatment during Abu Zubaydah’s rendition to and detention in Lithuania 24.     The applicant’s lawyers submitted that a further indication of the nature of the treatment of Abu Zubaydah in Lithuania could be seen from the authorised conditions of detention and transfer and interrogation techniques applicable at the relevant time, as prescribed by the United States Government. They noted, however, that there has been no public investigation of the conditions of detention and treatment of detainees at the site in Lithuania that might clarify whether those CIA guidelines were in fact complied with. (i)     Conditions during detention 25.     From 2003 to 2006 the conditions of detention in CIA detention facilities were purportedly governed by the Guidelines on Confinement Conditions for CIA Detainees signed by the CIA Director, George Tenet. The guidelines were not amended until October 2006, after Abu Zubaydah had been removed from CIA custody and in response to legislation passed by the United States Congress to extend protection against cruel and inhuman treatment to CIA detention facilities overseas. 26.     It was clear to the applicant’s lawyers from two United States legal reviews of the conditions of confinement that at least the following “six standard conditions of confinement” were in use at the relevant time: “(i)     Blindfolds or hooding designed to disorient the detainee and keep him “from learning his location or the layout of the detention facility”; (ii)     Removal of hair “[u]pon arrival at the detention facility” such that “the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair”; (iii)     Incommunicado, solitary confinement; (iv)     Continuous noise up to 79   dB, played at all times, and maintained in the range of 56-58   dB in detainees’ cells and 68-72   dB in the walkways; (v)     Continuous light such that “each cell [was] lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminate the cell to about the same brightness as an office”; (vi)     Use of leg shackles “in all aspects of detainee management and movement.” Some detainees were shackled for 24-hours per day.” 27.     In combination, the conditions meant that high-value detainees such as Abu Zubaydah were “in constantly illuminated cells, substantially cut off from human contact, and under twenty-four-hour surveillance”, for more than four years, including throughout his detention in Lithuania. The conditions of confinement were designed to enhance interrogation, in addition to providing security within the facility. United States Government documents recognised that: “(i)     the solitary confinement of detainees continued for years and may have altered their “ability to interact with others”; (ii)     a detainee remained “confined to his cell for much of each day, under constant surveillance, and [was] never permitted a moment to rest in the darkness and privacy that most people seek during sleep”; (iii)     that “[t]hese conditions are unrelenting and, in some cases, have been in place for several years”; and (iv)     “[t]hat these conditions, taken together and extended over an indefinite period, may exact a significant psychological toll.”” (ii)     Interrogation techniques 28.     Numerous publicly available United States Government documents described the regime of authorised interrogation techniques applicable during the relevant period, namely while Abu Zubaydah was detained in Lithuania. As noted by the European Committee for the Prevention of Torture when it visited Lithuania in 2010 (see paragraphs 84-88 below), “[t]he interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman or degrading treatment.” In this connection the applicant’s lawyers also referred to a 30 May 2005 memorandum from the United States Department of Justice Office of Legal Counsel, where authorised treatments were described as comprising three basic categories of abuse: “conditioning techniques”, “corrective techniques”, and “coercive techniques”. 29.     Conditioning techniques were used to put the detainee in a “baseline” state, and to “demonstrate to the [detainee] that he has no control over his basic human needs.” The conditioning techniques were designed with a view to their “cumulative effect”. The specific conditioning techniques included nudity, dietary manipulation and sleep deprivation. 30.     Corrective techniques entailed some amount of physical abuse used “to correct, startle, or to achieve another enabling objective.” The techniques “dislodge expectations that the detainee will not be touched.” Corrective techniques include “insult (facial) slap, abdominal slap, facial hold, and attention grasp.” The techniques were designed to “instil ... fear and apprehension”. 31.     Coercive techniques “place the detainee in more physical and psychological stress than the other techniques.” The techniques included “walling, water dousing, stress positions, wall standing, and cramped confinement” and “waterboarding”. The techniques could be used simultaneously. 3. Disclosure of the CIA’s secret rendition programme 32.     On 2 November 2005, when the applicant’s lawyers believe that Abu Zubaydah would still have been in Lithuania, The Washington Post published an article claiming that as part of the campaign against terrorism the CIA had conducted covert detention and interrogation of suspected terrorists and was hiding and interrogating some of its most important detainees in Eastern Europe. Following the publication of the article by The Washington Post and subsequent similar publications in the media about the CIA covert detention and interrogation programme, as well as its alleged implementation in Europe, the Parliamentary Assembly of the Council of Europe and the European Parliament initiated their own investigations of the matter. (a)     Inquiry by the Council of Europe (i)     The Article 52 Procedure [2] 33.     On 21 November 2005 the Secretary-General of the Council of Europe invoked the procedure under Article 52 of the European Convention on Human Rights with regard to reports of European collusion in secret rendition flights. Member States were required to give information on the restraints provided for in their internal law over acts by foreign agents in their jurisdiction, and on legal safeguards against unacknowledged deprivation of liberty. 34.     The Secretary General also inquired whether since 1   January 2002 any person acting in an official capacity had been involved in any manner, whether by action or omission, in the unacknowledged deprivation of liberty of any individual, or transport of any individual while so deprived of their liberty, including where such deprivation of liberty may have been carried out by or at the instigation of any foreign agency. Information was to be provided on whether any official investigation was under way or had been completed. 35.     As regards Lithuania, the reply was prepared by the Ministry of Foreign Affairs on the basis of information provided by the relevant State institutions. The reply was approved at a consultation meeting of the Lithuanian Government and was discussed at a meeting of the Seimas Foreign Affairs Committee when considering the issue of the activities of the United States secret services in Europe allegedly carried out in violation of human rights. No competent State institution, either in the course of preparation of the replies by the Ministry of Foreign Affairs or during consideration of the issue by the Seimas Foreign Affairs Committee, provided evidence confirming that the CIA or other United States secret services had been engaged in the illegal confinement of suspected terrorists on Lithuanian territory. Neither was there any information confirming that Lithuania’s airports had been used for covert transportation of suspected terrorists. 36.     In February 2006 the Lithuanian Government provided the Secretary General of the Council of Europe with answers to the questions posed. The response was a brief summary of the legal framework governing the functioning of foreign agents in Lithuania and the theoretical possibility of claiming damages for unlawful actions by State officials. 37.     In a letter of 7   March 2006 the Secretary General noted that the explanations provided by the Lithuanian Government did not address all the questions in enough detail. He asked for supplementary explanations on 1)   control mechanisms regarding transiting aircraft which may be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft; 2) whether since 1   January 2002 any Lithuanian officials had been involved in secret rendition, and whether any investigations had been conducted in that connection. (ii)     Dick Marty investigation and follow-up by the Parliamentary Assembly 38.     On 13 December 2005 the President of the Parliamentary Assembly of the Council of Europe (“PACE”) asked the Committee on Legal Affairs and Human Rights to investigate the allegations of “extraordinary renditions” in Europe. Senator Dick Marty of Switzerland was appointed special rapporteur. 39.     On 12 June 2006 the PACE published the 2006 Marty report [3] . The PACE reaffirmed its commitment to overcoming the threat of terrorism. That being so, it also found that in the name of fighting terrorism “the United States had progressively woven a clandestine “spider’s web” of disappearances, secret detentions and unlawful inter-state transfers, often including countries notorious for their use of torture”. Hundreds of people had become trapped in that “spider’s web”, which, furthermore, had been spun out with the collaboration or tolerance of many countries, including several Council of Europe member States. This cooperation, which took place in secret and without any democratic legitimacy, had spawned a system which was utterly incompatible with the fundamental principles of the Council of Europe. The facts and information gathered to that date, along with new factual patterns in the process of being uncovered, indicated that the key elements of that “spider’s web” had notably included: a world-wide network of secret detentions at CIA “black sites” and in military or naval installations; the CIA’s programme of “rendition”, under which terrorist suspects were flown between States on civilian aircraft, outside the scope of any legal protection, often to be handed over to States which customarily resort to degrading treatment and torture; and the use of military airbases and aircraft to transport detainees as human cargo to Guantánamo Bay in Cuba or to other detention centres. The PACE also held that “some Council of Europe member States had knowingly colluded with the U.S. to carry out these unlawful operations; some others had tolerated them or simply turned a blind eye. They had also gone to great lengths to ensure that such operations remained secret and protected from effective national or international scrutiny” (paragraphs 3-9 of the Resolution). 40.     The Dick Marty report explains in great detail the CIA methodology of treating a detainee during rendition. Although the rendition cases were individual, it seemed that in each separate case rendition was carried out in an almost identical manner. Collectively the cases in the report testified to the existence of an established modus operandi of rendition, put into practice by an elite, highly trained and highly disciplined group of CIA agents, who travelled around the world mistreating victim after victim in exactly the same fashion. Dick Marty considered that no security measure justified such a massive and systematic violation of human rights and dignity. In the cases examined, although the agents were aware that they were dealing with possibly dangerous people, the principle of proportionality was simply ignored and with it the dignity of the person. In several instances, the actions taken in the course of a “security check” were excessive in relation to security requirements and could therefore constitute a violation of Article 3 of the European Convention on Human Rights. While these did not appear to reach the threshold for torture, they could well be considered inhuman or degrading, particularly in the extent to which they humiliated the person being rendered (paragraphs 79-91 of the resolution). 41.     On 27   June 2007 the Council of Europe Parliamentary Assembly adopted Resolution 1562 (2007) on “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report”. By this time it considered as established with a high degree of probability that such secret detention centres operated by the CIA had existed for some years in Poland and Romania, though it did not rule out the possibility that secret CIA detentions may also have occurred in other Council of Europe member states. These secret places of detention formed part of the High-Value Terrorist Detainee (HVD) programme publicly referred to by the President of the United States on 6 September 2006. The PACE observed that implementation of that programme had given rise to repeated serious breaches of human rights. The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfilled the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Furthermore, secret detention as such was contrary to many international undertakings, entered into both by the United States and the Council of Europe member States concerned. Lithuania was not mentioned in the document. However, the PACE urged the States to conduct national investigations of the alleged implementation of the covert CIA programme of detention and interrogation of suspected terrorists, and proposed that the democratic control and supervision of secret services be strengthened. b)     Inquiry by the European Union 42.     On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition (TDIP Committee) and appointed Mr   Claudio Fava as rapporteur, with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal. It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. 43.     On 6 July 2006 the European Parliament adopted a resolution [4] , condemning European States’ participation in the CIA rendition programme. Lithuania was not mentioned in the resolution. 44.     On 30 January 2007, the final report of the Fava Inquiry was published [5] . As far as Lithuania is concerned, the report noted that: 1)   Lithuania provided no written response to the committee’s invitation to cooperate; 2) official representatives of Lithuania did not receive any request for meetings with the investigators of the TDIP Committee; 3)   Lithuania did not provide the investigators [6] with anything useful. The Committee’s Working Document No   8 on the companies linked to the CIA, the aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers [7] , contains a record that one CIA-operated aircraft, registered N8213G, made one stopover in Lithuania. A subsequent resolution adopted by the European Parliament [8] in 2007 does not mention Lithuania. 4.     Lithuania’s knowledge of the CIA Rendition, Detention and Interrogation Programme 45.     The applicant’s lawyers observed that when Lithuania and the CIA established a “black site” near Vilnius in March 2004 there existed a large amount of publicly available information about the secret detention and torture of detainees in CIA custody in secret detention sites around the world. On this point they submitted numerous excerpts from press articles, claiming that those excerpts represented only a small fraction of the information that was widely available and would have been known by Lithuanian officials. (a)     Media reports on alleged rendition and human rights violations occurring in Guantánamo Bay and Afghanistan 46.     Firstly, the lawyers for the applicant referred to a considerable number of articles in the Lithuanian press published from 2003 onwards, referring to abduction and transfer of detainees to Guantánamo and the conditions of their detention. They noted that the extraordinary rendition programme and the abusive practices included in it have been firmly in the international public domain since 2002, and since at least 2003 have been covered by media commonly followed in Lithuania. For the applicant’s lawyers, the sample of the provided media coverage, with an emphasis on media published in Lithuania, was indicative of what information was publicly available of the United States’ secret detention practices prior to or during the time when the Lithuanian authorities were cooperating with the United States in the operation of a “black site” in Lithuania. It gave an illustration of the much broader deluge of international media attention dedicated to the issue between 2003 and 2005, to which the Government would also have had access. Among other sources, the applicant’s lawyers noted the following: “(i)     On 18 June 2004, the Baltic News Service reported on secret CIA detention, noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On 26   July 2004, Delfi.lt, the leading Lithuanian online news site, published a lengthy discussion of the “question of means” in the “war on terrorism.” The report described the dilemma facing European states supporting the U.S. fight against terrorism in the light of the abusive United States detention and interrogation policies in Afghanistan, Guantánamo and Iraq. In October 2004, a major daily, Lietuvos Rytas , described the ongoing scandal of prisoner torture by United States officials in Afghanistan. In March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the detention and torture tactics used by the USA. (ii)     Likewise, on 17 December 2004, the Baltic News Service reported on the secret CIA prison established at Guantánamo Bay and the incommunicado detention of detainees there. (iii)     On 7 March 2005, within weeks of Abu Zubaydah’s transfer into Lithuania, major Lithuanian news agency ELTA reported on the classified Top Secret executive order issued by United States President George Bush in the first days after 11   September 2001 that gave broad authority for the CIA to conduct secret renditions, detention and interrogation. Referring to the “programme of prisoner rendition”, ELTA described some of the abusive conditions under which detainees were held and interrogated. (iv)     The following week, ELTA reported that European officials would investigate whether the CIA agents had violated the law while carrying out rendition operations in Europe involving transfer of persons to countries where they could face torture. According to ELTA, “the CIA usually organises these operations with the consent of local surveillance organisations; the governments of Italy, Germany and Sweden are investigating whether these actions infringe local laws and human rights.” This was followed on 25 October 2005 by the Baltic News Service reporting that the United States government was seeking to exempt CIA employees from the application of the prohibition of cruel and humiliating treatment. (v)     On 2 November 2005, ELTA reported on allegations of secret detention facilities in neighbouring Poland and Romania, noting that both denied the existence of CIA secret prisons on their territory but that the Council of Europe was investigating the claims. (vi)     In November 2005, one month before Abu Zubaydah was transferred out of Lithuania, reports began to emerge in Lithuania that aircraft associated with the CIA rendition programme, including N313P and N379P, had used Lithuanian airspace. Lithuanian newspapers published numerous reports in November 2005 detailing the nature of the allegations of a CIA network of secret prisons.” (b)     International cases and reports 47.     The applicant’s lawyers also submitted that Lithuanian Government officials had participated in proceedings of international organisations which addressed alleged abuses committed in United States detention. From those sources, as well as the media sources referred to above, those officials would clearly have been aware of the concerns regarding specific abuses of detainees in United States custody. On this point references were made to discussions at the level of the United Nations and the International Committee of the Red Cross, which took place between January 2002 and December 2005. (c)     Evidence of knowledge from statements by Lithuanian Government officials 48.     The applicant’s lawyers also maintained that the former President of Lithuania, Rolandas Paksas, had stated that Mečys Laurinkus, former Director of the Department of State Security, had asked him whether it would be possible to bring individuals accused of terrorism to Lithuanian territory and detain them “unofficially”. Mr Laurinkus “confirmed that he had spoken with the then President, R. Paksas, about the possibility of bringing people suspected of terrorism to Lithuania.” Mr Laurinkus maintained that there had been no specific request from the CIA for such a prison, but that he had asked for President Paksas’ permission to host a “black site” “because I knew what was going on in the world, because I had to inform the President on what was going on in the world.” He further explained in another interview on the same day: “I knew and I ought to have known what was going on in the world, and that this practice was going on. By the way, Bush didn’t deny this, well, not until much later. But the practice was happening, and I inquired about the President’s position.” (d)     Knowledge of conditions of detention at Guantánamo Bay specifically 49.     Lastly, the applicant’s lawyers pointed out that there had been Lithuanian newspaper reports on the illegality of detaining prisoners at Guantánamo Bay soon after the site’s establishment. On 2 February 2002, the Lietuvos Rytas daily reported European concerns about the potential for the use of torture at Guantánamo. On 4 March 2004, Baltic News Service reported that the United States Department of Defence had announced that Guantánamo prisoners did not have the right to legal counsel during their annual hearings reviewing the lawfulness of their detention. 50.     On 9 May 2004, ELTA reported on “cruel interrogation methods” employed at Guantánamo, and noted that they had been approved at the highest levels of the United States Government. A week later, on 13 May 2004, the Baltic News Service reported that the ICRC had announced a new report in which it criticised the conditions of detention of hundreds of prisoners at Guantánamo, describing the situation as critical. The ICRC reported that some of the conditions in military custody amounted to torture. Lietuvos Rytas described prisoner abuse as an everyday situation in the United States military. 51.     A month later, on 9 June 2004, the Baltic News Service reported that lawyers for United States President George Bush had determined that he was not bound by US and international law prohibiting torture, and that the President’s commander-in-chief authority exceeded any limitations posed by the Convention against Torture or the Geneva Conventions. The Baltic News Service also reported that the legal memorandum suggested that President Bush should issue a directive allowing his commander-in-chief authority to be exercised by subordinates. 52.     On 15 June 2004, the Baltic News Service described the torture methods applied at Abu Ghraib Prison as originating at Guantánamo Bay, quoting a US military official involved in the abuse at Abu Ghraib as stating that she was ordered to “treat prisoners ‘like dogs’” and that she had learned at Guantánamo “that prisoners have to earn absolutely everything.” The United States’ objective at Abu Ghraib, as described by the Baltic News Service, was to “Gitmo-ise” the treatment of prisoners, meaning to use the techniques employed at Guantánamo in Abu Ghraib. On 10 February 2005 ELTA reported again on sexual abuse of prisoners at Guantánamo. 53.     On 16 June 2005, the Baltic News Agency reported the United States’ Government’s assertions that detainees at Guantánamo could be held there indefinitely. 5.     Publicity on secret prisons in Lithuania and ensuing inquiries 54.     On 20 August 2009, the US television channel ABC News announced that up to the end of 2005 a secret CIA prison had been operating in Lithuania for the purposes of detention of high-value al-Qaeda terrorists. Acc