CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 janvier 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic }   Communicated on 30 January 2019   FOURTH SECTION Application no. 6383/17 Mustafa Ahmed Adam AL-HAWSAWI against Lithuania lodged on 19 December 2016 STATEMENT OF FACTS 1.     The applicant, Mr Mustafa Ahmed Adam al-Hawsawi, is a Saudi Arabian national, who was born in 1968 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba. He is represented before the Court by Mr C. Esdaile, a legal advisor from a non-governmental organisation Redress with its seat in London, the United Kingdom. A.     Background to the case 1.     Terrorist acts of which the applicant has been suspected 2.     The US authorities have considered that the applicant was a senior al ‑ Qaeda member, who supported the al-Qaeda terrorist network as a facilitator, financial manager and media committee member. This support is considered to have included the movement and funding of 9/11 hijackers to the USA to participate in a terrorist attack deemed to have been orchestrated by Khalid Sheikh Mohammed. 2.     The so-called “High-Value Detainee Programme” 3.     On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“the CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme”. For the purposes of the present case, it is referred to as “the HVD Programme”. 4.     A detailed account of the HVD Programme can be found in the Court’s judgments in Husyan (Abu Zubaydah) v. Poland (no. 7511/13, §§   47-69, 24 July 2014) ; Abu Zubaydah v. Lithuania (no. 46454/11, §§   20 ‑ 53, 31   May 2018) and Al Nashiri v. Romania (no.   33234/12, §§   22 ‑ 61, 31   May 2018). The abridged description of the programme given below is based on that account. (a)     Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 5.     On 24 August 2009 the US 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”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out. 6.     The report, which covers the period from September 2001 to mid ‑ October 2003, begins with a statement that in November 2002 the CIA   Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“the OIG”) that the Agency had established a programme in the CTC “to detain and interrogate terrorists at sites abroad”. 7.     The background of the HVD 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 US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.” 8.     As further 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 “HVDs”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “high ‑ value targets” (“HVTs”). (b)     Enhanced Interrogation Techniques 9.     According to the 2004 CIA Report, in August 2002 the US   Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), to be applied to suspected terrorists, would not violate the prohibition of torture. 10.     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 the floor with his legs extended straight out in front of him with his arms 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.” 11.     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 (that is, 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. 12.     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 by Jay S. Baybee, Assistant Attorney General 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. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu   Zubaydah, was declassified in 2009. 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. 13.     According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr   Abu   Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted. (c)     Expanding the use of the EITs beyond Abu Zubaydah’s interrogations 14.     The 2004 CIA Report 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’”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages: “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.” The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice’s 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. 15.     The application of the EITs to other terrorist suspects in CIA custody began in November 2002. 3.     Conditions of detention at CIA “Black Sites” 16.     From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees (“the DCI Confinement Guidelines”), signed by the CIA Director, George Tenet, on 28 January 2003. This document, together with the DCI Interrogation Guidelines (see paragraph 53 below), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. According to the report, that meant that even a facility comparable to the “Detention Site Cobalt” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard. 17.     According to the guidelines, at least the following “six standard conditions of confinement” were in use during that period: (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 upon 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 79dB, 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 illuminated the cell to about the same brightness as an office; (vi)     use of leg shackles in all aspects of detainee management and movement. 18.     The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows: “... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ... . Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee’s ability to interact with others. ...” 4.     The scale of the HVD Programme 19.     According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008. Early 2003 was the most active period of the programme. Of the 119   detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue. 20.     The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “final disposition”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007. 5.     Closure of the HVD Programme 21.     On 6 September 2006 President Bush 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 Guantánamo Bay. 22.     In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “short-term, transitory basis” and limited interrogation techniques to those included in the Army Field Manual. 6.     Military Commissions 23.     On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non ‑ Citizens in the War Against Terrorism (“the 2001 Military Commission Order”). It was published in the Federal Register on 16   November 2001. On 21 March 2002 Donald Rumsfeld, the US Secretary of Defense at the relevant time, issued the Military Commission Order No. 1 (effective immediately) on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism (“the 2002 Military Commission Order”). The order was promulgated on the same day. 24.     On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld , 548 U.S. 557, 635 (2006), that the military commission “lack[ed] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949”. It further held: “(a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to ‘close’. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other ‘protected information’, so long as the presiding officer concludes that the evidence is ‘probative’ and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial.” 25.     In consequence, the Military Commission Order was replaced by the Military Commissions Act of 2006 (“the 2006 MCA”), an Act of Congress, passed by the US Senate and US House of Representatives, respectively, on 28 and 29 September 2006 and signed into law by President Bush on 17   October 2006. On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 (“the 2009 MCA”). 26.     On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings. The rules include some improvements of the procedure but they still continue, as did the rules applicable in 2001-2009, to permit the introduction of coerced statements under certain circumstances if “use of such evidence would otherwise be consistent with the interests of justice”. 27.     A detailed description of the procedure before the military commission and publicly raised concerns regarding that procedure can be found in Al Nashiri (cited above, §§ 71-77). 7.     The 2014 US Senate Committee Report 28.     In March 2009 the US Senate Intelligence Committee initiated a review of the CIA’s activities involved in the HVD Programme, in particular the secret detention at foreign “black sites” and the use of the EITs. That review originated in an investigation that had begun in 2007 and concerned the CIA’s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri at Detention Site Green located in Thailand (see also paragraphs 45-46 below). The destruction was carried out in November 2005. 29.     The US Senate Committee on Intelligence, together with their staff, reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah, Al Nashiri and other CIA prisoners, and more than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records. 30.     On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program”. The full Committee Study – as stated therein, “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program” – which is more than 6,700 pages long, remains classified. The declassified Executive Summary (“the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate’s review of the CIA’s activities involved in the HVD Programme see Abu Zubaydah v.   Lithuania , cited above, §§ 70-89). 31.     The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows. 32.     Conclusion 2 states that “the CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”. 33.     Conclusion 3 states that “[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others”. It reads, in so far as relevant, as follows: “Beginning with the CIA’s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘wallings’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used ‘an open, nonthreatening approach’, or that interrogations began with the ‘least coercive technique possible’ and escalated to more coercive techniques only as necessary. The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became ‘completely unresponsive, with bubbles rising through his open, full mouth’. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a ‘series of near drownings’. Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation.” 34.     Conclusion 4 states that “the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others” and that “conditions at CIA detention sites were poor, and were especially bleak early in the programme”. As regards conditions at later stages, the following findings were made: “Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel. Throughout the program, multiple CIA detainees who were subjected to the CIA’s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.” 35.     Conclusion 8 states that “the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies”, including the Federal Bureau of Investigation (“the FBI”), the State Department and the Office of the Director of National Intelligence (“the ODNI”). In particular, the CIA withheld or restricted information relevant to these agencies’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them. 36.     The findings under Conclusion 8 also state that, while the US authorities’ access to information about “black sites” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated: “The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served. In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors.” 37.     Conclusion 14 states that “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters”. It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters. 38.     Conclusion 15 states that “the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA’s EITs, were inaccurate. The Committee’s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA’s enhanced interrogation techniques. Of the 119   known detainees, at least twenty-six were wrongfully held. 39.     Conclusion 19 states that “the CIA’s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns”. 40.     It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities. According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6   September 2006. From the beginning of the programme, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country (whose name was redacted) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program. Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA’s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA’s detention facility in that country. 41.     In early 2004, the anticipation of the US Supreme Court’s decision to grant certiorari in the case of Rasul v. Bush (where, subsequently, the Supreme Court held that foreign nationals detained in Guantánamo could petition federal courts for writs of habeas corpus to review the legality of their detention) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay (see also paragraph 50 below). In mid-2004 the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel. In late 2005 and in 2006, the Detainee Treatment Act and then the US Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006)); see also paragraph 24 above) caused the CIA to again temporarily suspend the use of the EITs. 42.     According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA’s ability to operate clandestine detention facilities. By March 2006 the program was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008. 43.     Finally, Conclusion 20 states that “the CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs”. It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted] million that were never used, in part due to the host country’s political concerns. 44.     According to the 2014 US Senate Committee Report: “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘wish lists’ of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to ‘think big’ in terms of that assistance”. 8.     Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts heard by the Court in Al Nashiri v. Poland and Abu Zubaydah v. Lithuania 45.     In the 2014 US Senate Committee Report all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named. It is explained that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying those countries be redacted. The countries were accordingly listed by a single letter of the alphabet, a letter which was nevertheless blackened throughout the document. The report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown”. 46.     The experts heard by the Court in Abu Zubaydah v. Lithuania and Al Nashiri v. Romania identified the locations of the above detention sites as follows: Detention Site Green was located in Thailand, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Black was identified as having been located in Romania and the remaining four sites were located in Afghanistan (see Al Nashiri, cited above, §   159; and Abu   Zubaydah v. Lithuania, cited above, § 166). B.     The circumstances of the case 47.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Restrictions on information about the applicant’s secret detention and his communication with the outside world 48.     The applicant submits that since March 2003 he has been kept in continuous solitary confinement and virtually deprived of any contact with the outside world, except for his counsel representing him before the military commission in Guantánamo, the Prison Camp No. 7 personnel and members of the military commission. He is prevented under the military commission’s rules from speaking publicly – either directly or through his US military counsel – about his torture, ill-treatment, secret detention and rendition. 2.     The applicant’s capture, transfer to CIA custody and detention before his alleged rendition to Lithuania 49.     The applicant states that in March 2003 he was captured by the Pakistani forces in Rawalpindi, Pakistan and transferred to US authorities’ custody. From that time onwards he was incommunicado secretly detained under the HVD Programme and subjected by the CIA personnel to torture during interrogations with the use of the EITs. According to the applicant, shortly after his capture he was held at Detention Site Cobalt, located in Afghanistan and remained there probably until 21/22 November 2003, the date on which the CIA rendition flight N313P transporting CIA detainees flew from Kabul, Afghanistan via Rabat, Morocco, to Guantánamo Bay, Cuba. He was detained at the CIA’s detention facility in Guantánamo until most probably 27 March 2004, the date on which the rendition plane transporting CIA prisoners flew from Guantánamo to a detention facility used by the CIA in Rabat, Morocco. In that context he has also mentioned the second rendition circuit executed by N85VM on 12 April 2004, transporting detainees from Guantánamo Bay to Bucharest, Romania. 50.     The 2014 US Senate Committee Report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo to Bay to Country [name REDACTED]” (see also paragraph 41 above), states: “Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush , might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court’s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court’s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities.” 51.     In his application, the applicant has not indicated the location of the site or sites at which he was held after his transfer from Guantánamo Bay until his rendition to Lithuania. He maintains that the EITs were first used against him at Detention Site Cobalt. 52.     The 2014 US Senate Committee Report confirms that in the course of his detention the applicant was subjected to unapproved EITs, including “water dousing”. It further relates two interrogation sessions that took place, respectively, on 5 and 6 April 2003 at Detention Site Cobalt. The relevant part of the report reads: “[REDACTED] In interrogation sessions on April 5, 2003, and April 6, 2003, senior CIA interrogator [REDACTED] another interrogator used the water dousing technique on detainee Mustafa al-Hawsawi at DETENTION SITE COBALT. Al-Hawsawi later described the session to a different CIA interrogator, who wrote that al- Hawsawi might have been waterboarded or subjected to treatment that ‘could be indistinguishable from the waterboard’. An email from the interrogator stated that: ‘We did not prompt al-Hawsawi - he described the process and the table on his own. As you know, I have serious reservations about watering them in a prone position because if not done with care, the net effect can approach the effect of the water board. If one is held down on his back, on the table or on the floor, with water poured in his face I think it goes beyond dousing and the effect, to the recipient, could be indistinguishable from the water board. I have real problems with putting one of them on the water board for ‘dousing’. Putting him in a head down attitude and pouring water around his chest and face is just too close to the water board, and if it is continued may lead to problems for us.’ [REDACTED] Several months later, the incident was referred to the CIA inspector general for investigation. A December 6, 2006, inspector general report summarized the findings of this investigation, indicating that water was poured on al-Hawsawi while he was lying on the floor in a prone position, which, in the opinion of at least one CIA interrogator quoted in the report, ‘can easily approximate waterboarding’. The OIG could not corroborate whether al-Hawsawi was strapped to the waterboard when he was interrogated at DETENTION SITE COBALT. Both of the interrogators who subjected al-Hawsawi to the CIA’s enhanced interrogation techniques on April 6, 2003, said that al-Hawsawi cried out for God while the water was being poured on him and one of the interrogators asserted that this was because of the cold temperature of the water. Both of the interrogators also stated that al-Hawsawi saw the waterboard and that its purpose was made clear to him. The inspector general report also indicates that al-Hawsawi’s experience reflected ‘the way water dousing was done at [DETENTION SITE COBALT]’ and that this method was developed with guidance from CIA CTC attorneys and the CIA’s Office of Medical Services.” 3.     The applicant’s alleged rendition to Lithuania, his secret detention at Detention Site Violet and his rendition from Lithuania 53.     The applicant states that, on the basis of research into the CIA’s rendition operations, it is believed that he was rendered by the CIA to Lithuania on one of the following three rendition flights into Lithuania: (a)     N724CL, from Rabat to Vilnius, on 17 February 2005; (b)     N787WH, from Rabat, via Bucharest, to Palanga, on 18 February 2005; (c)     N787WH, from Bucharest to Vilnius, on 6 October 2005; via a so ‑ called “double-plane switch” in Tirana, involving N787WH and the plane N308AB which flew from Bucharest. The “double-switch” operation was executed by using these two planes, each of which completed only half the route so that the CIA prisoners could be transferred from one plane to another in Tirana airport in which they converged. The detainees were transferred from N308AB onto N787WH for the flight to Vilnius. The applicant states that he was then detained in a secret CIA prison, codenamed “Detention Site Violet” in the 2014 US Senate Committee Report and referred to as “Project No. 2” in an inquiry conducted by the Lithuanian Parliament (see paragraphs 60-61 below). In the applicant’s submission, he was transferred out of Lithuania on 25   March 2006 on board the rendition plane N733MA via Cairo and another “double-plane switch”, which involved N733MA and the CIA rendition plane registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006. 54.     Relying on the 2014 US Senate Committee Report, the applicant submits that Detention Site Violet opened in early 2005 and closed in March 2006 due to lack of emergency medical care for him and other detainees. The closure was marked by the above-mentioned flight N733MA from Palanga, Lithuania to Cairo, Egypt on 25 March 2006. The applicant was subsequently taken on board N740EH from Cairo to Afghanistan and detained in a CIA secret detention facility codenamed “Detention Site Brown” in the 2014 US Senate Committee Report. 4.     Detention Site Violet in the 2014 US Senate Committee Report 55.     In the chapter entitled “Press Stories and the CIA’s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the closure of Detention Site Black and Detention Site Violet reads as follows: “[long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee’s medical emergency would be handled. While the CIA understood the [REDACTED] officers’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care’. After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED]. ... The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED]. On March [REDACTED two-digit number], 2006 the CIA Headquarters requested that the CIA Station in Country [REDACTED] ask Country [REDACTED] to arrange discreet access to a nearest hospital and medical staff.” 5.     The Court’s findings of fact in Abu Zubaydah v. Lithuania in respect of the rendition planes indicated by the applicant and Detention Site Violet 56.     A summary of the Court’s findings in the above case (see Abu   Zubaydah v. Lithuania, cited above, § 532) reads as follows: “Consequently, the Court considers the applicant’s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that: (a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania; (b) the facility started operating either from 17 February 2005, the date of the CIA rendition flight N724CL into Vilnius airport, or from 18 February 2005, the date of the CIA rendition flight N787WH into Palanga airport; and (c) the facility was closed on 25 March 2006 and its closure was marked by the CIA rendition flight N733MA into Palanga airport, which arrived from Porto, Portugal and, having disguised its destination in its flight plan by indicating Porto, on the same day took off for Cairo, Egypt.” 57.     The Court’s findings in respect to the N787WH’s landing in Vilnius on 6 October 2005 (see Abu Zubaydah v. Lithuania , cited above, § 507) read as follows: “(b)     The N787WH’s circuit on 1-7 October 2005 was disguised by both the ‘dummy’ flight planning and switching aircraft in the course of the rendition operation, also called a ‘double-plane switch’ – that is to say, another CIA method of disguising its prisoner-transfers, which was designed, according to expert J.G.S., to avoid the eventuality of the same aircraft appearing at the site of two different places of secret detention (see paragraph 129 above; see also Al Nashiri v. Romania , cited above, § 135). The expe