al-Hawsawi v. Lithuania

Last Updated on January 16, 2024 by LawEuro

Legal summary
January 2024

al-Hawsawi v. Lithuania – 6383/17

Judgment 16.1.2024 [Section II]

Article 3
Inhuman treatment
Effective investigation
Inhuman treatment during the applicant’s extraordinary rendition to CIA: violation

Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Detention during an operation involving extraordinary rendition to CIA: violation

Article 6
Criminal proceedings
Article 6-1
Fair hearing
Extraordinary rendition to CIA despite real and foreseeable risk of flagrantly unfair trial before the US military commission: violation

Article 1 of Protocol No. 6
Abolition of the death penalty
Extraordinary rendition to CIA of suspected terrorist facing capital charges: violation

Facts – The applicant was captured during the “war on terror” following the 11 September 2001 attacks and detained by the United States (US) Central Intelligence Agency (CIA) as a “High-Value Detainee” (HVD), that is, terrorist suspects likely to be able to provide information about current terrorist threats against the US. He was held in secret detention facilities in various countries, including Lithuania, during the CIA’s extraordinary rendition operations and was subjected to “enhanced interrogation techniques”. The applicant was transferred to US military custody in September 2006 and since then has been detained in the Internment Facility at the US Guantánamo Bay Naval Base.

In 2008 the applicant was arraigned on capital charges before the military commission in Guantánamo. The trial is still pending.

The circumstances of the applicant’s extraordinary rendition have been the subject of various reports and investigations, including reports prepared by Dick Marty, as rapporteur for the investigation conducted by Parliamentary Assembly of the Council of Europe (PACE), and the 2014 US Senate report on CIA torture.

The applicant complained that the respondent State had allowed and/or enabled the CIA: to subject him to torture, ill-treatment and undisclosed and incommunicado detention on its territory, without adequately investigating his allegations in this respect; to transfer him to other CIA detention sites abroad exposing him to further torture, ill-treatment and undisclosed detention; and to transfer him to the US where he faced a flagrantly unfair trial and the death penalty.

Law –

Establishment of the facts and Jurisdiction – The Court had found it established beyond reasonable doubt in Abu Zubaydah v. Lithuania that Lithuania had hosted on its territory a CIA Detention Site. That finding had not been contested in the present case by the Government. Furthermore, having regard to the materials before it, including expert and witness evidence and the international inquiries and reports, it found it established beyond reasonable doubt that the applicant had been secretly detained there for about either five months or a year and had been kept under the regime of “standard conditions of confinement” laid down in the CIA Guidelines on Confinement Conditions for CIA Detainees; that the authorities of the respondent State had known of the nature and purposes of the CIA’s activities on its territory and had cooperated in the preparation and execution of the CIA rendition, while being aware that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing the said suspects to a serious risk of treatment contrary to the Convention. The Government had not adduced any material or indeed a single piece of evidence that would be capable of casting doubt on, not to mention altering, the Court’s conclusions in the case of Abu Zubaydah as to the Lithuanian authorities’ knowledge of and complicity in the CIA Programme.

The matters thus complained of in the present case fell within the “jurisdiction” of Lithuania within the meaning of Article 1 and were capable of engaging its responsibility under the Convention.

Article 3:

(a) Procedural aspect – The investigation by the Lithuania authorities in the applicant’s case had been pending since 13 February 2014 and had thus so far lasted nearly ten years. On 6 February 2015 it had been joined with the investigation in the case of Mr Abu Zubaydah in respect of which the Court had found a violation of the procedural aspect of Article 3 in its respective judgment. Accordingly, its findings in that case relating to the period from 6 February 2015 to 10 April 2018, the date of adoption of that judgment, were relevant for the assessment of the authorities’ conduct in the present case.

As regards the above period the Court in Abu Zubaydah had concluded that it did not appear that any meaningful progress in investigating Lithuania’s complicity in the CIA HVD Programme and identifying the persons responsible had so far been achieved. That conclusion, bearing in mind that on 10 April 2018 the investigation in the applicant’s case had already been pending for over four years, also applied to the present case.

As regards the subsequent period, the Government had not given any satisfactory reasons why over that time the prosecution authorities had not made any tangible progress in the investigation regarding the knowledge, complicity in the CIA’s activities, conduct and actions or omissions of Lithuanian officials, matters which had already been the object of the Seimas inquiry of 2010 referred to in Abu Zubaydah.

Furthermore, the applicant’s numerous and repeated requests to be granted victim status or at least to be provided with information about the investigation, had been unsuccessful and had resulted in him being in a kind of perpetual limbo: victim status had been denied to him because of the applicable “strict evidential standard”, which in the prosecution’s view he had not yet met, and he could not obtain information about the investigation because he was not a party to the proceedings. In that regard, securing proper accountability of those responsible was conducive to maintaining confidence in the adherence of the Lithuanian State’s institutions to the rule of law. The applicant and the public had a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what had happened at the material time.

The importance and gravity of the issues required particularly intense public scrutiny of the investigation and the Lithuanian public had a legitimate interest in being informed of the criminal proceedings and their results. Although the Government had maintained that access of the public to information had been ensured by the Prosecutor General Office’s public relations unit, it had not explained how that had been done.

Having regard to the above deficiencies of the impugned proceedings, Lithuania had failed to comply with the requirements of an “effective and thorough” investigation into the applicant’s allegations of serious violations of the Convention.

(b) Substantive aspect – The Court established beyond reasonable doubt that during his detention in Lithuania the applicant had been kept – as any other CIA detainee – under a regime including, as a matter of fixed, predictable routine, blindfolding or hooding of the detainees, which was designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement.

While the applicant had not been subjected to interrogations with the use of the harshest methods, he had been subjected to an extremely harsh detention regime including a virtually complete sensory isolation from the outside world and suffered from permanent emotional and psychological distress and anxiety also caused by the past experience of torture and cruel treatment in the CIA’s hands and fear of his future fate. Consequently, having regard to the regime of detention to which the applicant must have been subjected in Lithuania and its cumulative effects on him, the treatment complained of was to be characterised as having involved intense physical and mental suffering falling within the notion of “inhuman treatment”.

Accordingly, the Lithuanian authorities, on account of their “acquiescence and connivance” in the HVD Programme had to be regarded as responsible for the violation of the applicant’s rights under Article 3 committed on their territory.

Furthermore, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities had exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3.

Conclusion: violations (unanimously).

Article 5:

The secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated. Such cooperation and various forms of assistance by those authorities, such as the customising of the premises for the CIA’s needs or the provision of security and logistics, constituted the necessary condition for the effective operation of the CIA secret detention facilities.

In addition, the Court’s finding under the substantive aspect of Article 3 that by enabling the CIA to transfer the applicant to its secret detention facilities had exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 also applied to the complaint under Article 5.

Lithuania’s responsibility was thus engaged in respect of both the applicant’s secret detention on its territory and his transfer from Lithuania.

Conclusion: violation (unanimously).

The Court also found, unanimously, violations of:

– Article 8 as the interference with the applicant’s right to respect for his private and family life had not been in accordance with the law and lacked any justification, given the imposition of fundamentally unlawful, undisclosed detention;

– Article 6 § 1 on account of the applicant’s transfer from the respondent State’s territory, despite a real and foreseeable risk that he could face a flagrant denial of justice in the US proceedings before a military commission;

– Articles 2 and 3 of the Convention in conjunction with Article 1 of Protocol No. 6 on account of the transfer of the applicant from the respondent State’s territory in spite of a substantial and foreseeable risk that he would be subjected to the death penalty following his trial before the military commission. Given that he had been arraigned on capital charges in June 2008 and that since then he had been on trial facing the prospect of the death penalty, that risk had not diminished.

– Article 13 in conjunction with Articles 3, 5 and 8 in that the criminal investigation had fallen short of the standards of an effective investigation as required by Article 3 and thus the lack of effective remedies in respect of the applicant’s complaints about a violation of his rights.

Article 46:

In order to comply with its obligations under Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention, Lithuania was required to endeavour to remove, as soon as possible, the risk that the applicant would be subjected to the death penalty by seeking assurances from the US authorities that it would not be imposed. Even though the proceedings against him before the military commission were still pending and the outcome of the trial remained uncertain, that risk continued. Furthermore, the Lithuanian authorities were required to attempt to make further representations to the US authorities with a view to removing or, at the very least seeking to limit, as far as possible, the effects of the above Convention violations suffered by the applicant.

Lastly, the respondent State was required to take all necessary steps to reactivate and advance the still pending criminal investigation without delay and to bring it to a close as soon as possible once, in so far as that proved feasible, the circumstances and conditions under which the applicant had been brought into, treated in and thereafter removed from its territory had been elucidated further, so as to enable the identification, accountability and, where appropriate, punishment of those responsible.

Article 41: EUR 100,000 in respect of non-pecuniary damage.

(See also El-Masri v. the former Yugoslav Republic of Macedonia [GC], 39630/09, 13 December 2012, Legal Summary; Al Nashiri v. Poland, 28761/11, 24 July 2014, Legal Summary; Husayn (Abu Zubaydah) v. Poland, 7511/13, 24 July 2014, Legal Summary; Nasr and Ghali v. Italy, 44883/09, 23 February 2016, Legal Summary; Al Nashiri v. Romania, 33234/12, 31 May 2018, Legal Summary; Abu Zubaydah v. Lithuania, 46454/11, 31 May 2018, Legal Summary)