Communicated on 30 January 2019<\/p>\n
FOURTH SECTION<\/p>\n
Application no.6383\/17
\nMustafa Ahmed Adam AL-HAWSAWI
\nagainst Lithuania
\nlodged on 19 December 2016<\/p>\n
STATEMENT OF FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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 Guant\u00e1namo 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.<\/p>\n A.\u00a0\u00a0Background to the case<\/strong><\/p>\n 1.\u00a0\u00a0Terrorist acts of which the applicant has been suspected<\/p>\n 2.\u00a0\u00a0The US authorities have considered that the applicant was a senior al\u2011Qaeda 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.<\/p>\n 2.\u00a0\u00a0The so-called \u201cHigh-Value Detainee Programme\u201d<\/p>\n 3.\u00a0\u00a0On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (\u201cthe CTC\u201d) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as \u201cthe CTC program\u201d but, subsequently, it was also called \u201cthe High-Value Detainee Program\u201d (\u201cthe HVD Programme\u201d) or the Rendition Detention Interrogation Program (\u201cthe RDI Programme\u201d). In the Council of Europe\u2019s documents it is also described as \u201cthe CIA secret detention programme\u201d or \u201cthe extraordinary rendition programme\u201d. For the purposes of the present case, it is referred to as \u201cthe HVD Programme\u201d.<\/p>\n 4.\u00a0\u00a0A detailed account of the HVD Programme can be found in the Court\u2019s judgments in Husyan (Abu Zubaydah) v. Poland (no. 7511\/13, \u00a7\u00a7\u00a047-69, 24 July 2014);Abu Zubaydah v. Lithuania (no. 46454\/11<\/a>, \u00a7\u00a7\u00a020\u201153, 31\u00a0May 2018) and Al Nashiri v. Romania (no.\u00a033234\/12<\/a>, \u00a7\u00a7\u00a022\u201161, 31\u00a0May 2018). The abridged description of the programme given below is based on that account.<\/p>\n (a)\u00a0\u00a0Setting up the CIA programme \u201cto detain and interrogate terrorists at sites abroad\u201d<\/strong><\/p>\n 5.\u00a0\u00a0On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 (\u201cthe 2004 CIA Report\u201d). The document, dated 7 May 2004 and entitled \u201cSpecial Review Counterterrorism Detention and Interrogation Activities September\u00a02001\u2011October 2003\u201d, with appendices A-F, had previously been classified as \u201ctop secret\u201d. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out.<\/p>\n 6.\u00a0\u00a0The report, which covers the period from September 2001 to mid\u2011October 2003, begins with a statement that in November 2002 the CIA\u00a0Deputy Director for Operations (\u201cthe DDO\u201d) informed the Office of Inspector General (\u201cthe OIG\u201d) that the Agency had established a programme in the CTC \u201cto detain and interrogate terrorists at sites abroad\u201d.<\/p>\n 7.\u00a0\u00a0The background of the HVD Programme was explained in paragraphs\u00a04-5 as follows:<\/p>\n \u201c4.\u00a0\u00a0[REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high\u2011value 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\u2019Qaeda high value detainees.<\/p>\n 5.\u00a0\u00a0[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\u2019Qaeda 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.\u201d<\/p>\n 8.\u00a0\u00a0As further explained in the 2004 CIA Report, \u201cterrorist targets\u201d and detainees referred to therein were generally categorised as \u201chigh value\u201d or \u201cmedium value\u201d. 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. \u201cMedium-value detainees\u201d were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. \u201cHigh-value detainees\u201d (also called \u201cHVDs\u201d) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as \u201chigh\u2011value targets\u201d (\u201cHVTs\u201d).<\/p>\n (b)\u00a0\u00a0Enhanced Interrogation Techniques<\/strong><\/p>\n 9.\u00a0\u00a0According to the 2004 CIA Report, in August 2002 the US\u00a0Department of Justice had provided the CIA with a legal opinion determining that 10 specific \u201cEnhanced Interrogation Techniques\u201d (\u201cEITs\u201d), to be applied to suspected terrorists, would not violate the prohibition of torture.<\/p>\n 10.\u00a0\u00a0The EITs are described in paragraph 36 of the 2004 CIA Report as follows:<\/p>\n \u201c[1.]\u00a0\u00a0The 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.<\/p>\n [2.]\u00a0\u00a0During 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.<\/p>\n [3.]\u00a0\u00a0The facial hold is used to hold the detainee\u2019s head immobile. The interrogator places an open palm on either side of the detainee\u2019s face and the interrogator\u2019s fingertips are kept well away from the detainee\u2019s eyes.<\/p>\n [4.]\u00a0\u00a0With the facial or insult slap, the fingers are slightly spread apart. The interrogator\u2019s hand makes contact with the area between the tip of the detainee\u2019s chin and the bottom of the corresponding earlobe.<\/p>\n [5.]\u00a0\u00a0In 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.<\/p>\n [6.]\u00a0\u00a0Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.<\/p>\n [7.]\u00a0\u00a0During 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.<\/p>\n [8.]\u00a0\u00a0The 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.<\/p>\n [9.]\u00a0\u00a0Sleep deprivation will not exceed 11 days at a time.<\/p>\n [10.]\u00a0\u00a0The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee\u2019s head is immobilized and an interrogator places a cloth over the detainee\u2019s 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.\u201d<\/p>\n 11.\u00a0\u00a0Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations, of 4\u00a0September 2003) refers to \u201clegally sanctioned interrogation techniques\u201d.<\/p>\n It states, among other things, that \u201ccaptured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. … These are designed to psychologically \u2018dislocate\u2019 the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist … efforts to obtain critical intelligence\u201d.<\/p>\n The techniques included, in ascending degree of intensity:<\/p>\n (1)\u00a0\u00a0Standard 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).<\/p>\n (2)\u00a0\u00a0Enhanced 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.<\/p>\n 12.\u00a0\u00a0Appendix 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\u2011ranking 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\u00a0Zubaydah, was declassified in 2009.<\/p>\n It concludes that, given that \u201cthere is no specific intent to inflict severe mental pain or suffering …\u201d the application \u201cof these methods separately or a course of conduct\u201d would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.<\/p>\n 13.\u00a0\u00a0According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr\u00a0Abu\u00a0Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding \u2013 the name of the twelfth EIT was redacted.<\/p>\n (c)\u00a0\u00a0Expanding the use of the EITs beyond Abu Zubaydah\u2019s interrogations<\/strong><\/p>\n 14.\u00a0\u00a0The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (\u201cOGC\u201d) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu\u00a0Zubaydah.<\/p>\n According to the report, \u201cthis resulted in the production of an undated and unsigned document entitled Legal principles Applicable to CIA Detention and Interrogation of Captured Al\u2019Qaeda Personnel\u2019\u201d. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages:<\/p>\n \u201cthe [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\u2019Qaeda 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. …<\/p>\n 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\u2019 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.\u201d<\/p>\n The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice\u2019s 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.<\/p>\n 15.\u00a0\u00a0The application of the EITs to other terrorist suspects in CIA custody began in November 2002.<\/p>\n 3.\u00a0\u00a0Conditions of detention at CIA \u201cBlack Sites\u201d<\/p>\n 16.\u00a0\u00a0From 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 (\u201cthe DCI Confinement Guidelines\u201d), signed by the CIA Director, George Tenet, on 28 January 2003.<\/p>\n 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 \u201cbasic health needs\u201d.<\/p>\n According to the report, that meant that even a facility comparable to the \u201cDetention Site Cobalt\u201d 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.<\/p>\n 17.\u00a0\u00a0According to the guidelines, at least the following \u201csix standard conditions of confinement\u201d were in use during that period:<\/p>\n (i)\u00a0\u00a0blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility;<\/p>\n (ii)\u00a0\u00a0removal 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;<\/p>\n (iii)\u00a0\u00a0incommunicado, solitary confinement;<\/p>\n (iv)\u00a0\u00a0continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees\u2019 cells and 68-72 dB in the walkways;<\/p>\n (v)\u00a0\u00a0continuous 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;<\/p>\n (vi)\u00a0\u00a0use of leg shackles in all aspects of detainee management and movement.<\/p>\n 18.\u00a0\u00a0The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled \u201cApplication of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities\u201d, 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:<\/p>\n \u201c… 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 … .<\/p>\n 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\u2019s ability to interact with others. …\u201d<\/p>\n 4.\u00a0\u00a0The scale of the HVD Programme<\/p>\n 19.\u00a0\u00a0According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008.<\/p>\n Early 2003 was the most active period of the programme. Of the 119\u00a0detainees 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.<\/p>\n 20.\u00a0\u00a0The report states that by the end of 2004 the overwhelming majority of CIA detainees \u2013 113 of the 119 identified in the report \u2013 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 \u201cfinal disposition\u201d. 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.<\/p>\n 5.\u00a0\u00a0Closure of the HVD Programme<\/p>\n 21.\u00a0\u00a0On 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 Guant\u00e1namo Bay.<\/p>\n 22.\u00a0\u00a0In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a \u201cshort-term, transitory basis\u201d and limited interrogation techniques to those included in the Army Field Manual.<\/p>\n 6.\u00a0\u00a0Military Commissions<\/p>\n 23.\u00a0\u00a0On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non\u2011Citizens in the War Against Terrorism (\u201cthe 2001 Military Commission Order\u201d). It was published in the Federal Register on 16\u00a0November 2001.<\/p>\n 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 (\u201cthe 2002 Military Commission Order\u201d). The order was promulgated on the same day.<\/p>\n 24.\u00a0\u00a0On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006), that the military commission \u201clack[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\u201d. It further held:<\/p>\n \u201c(a) The commission\u2019s 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 \u2018close\u2019. 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 \u201cother national security interests.\u201d Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer\u2019s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan\u2019s commission permit the admission of any evidence that, in the presiding officer\u2019s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other \u2018protected information\u2019, so long as the presiding officer concludes that the evidence is \u2018probative\u2019 and that its admission without the accused\u2019s knowledge would not result in the denial of a full and fair trial.\u201d<\/p>\n 25.\u00a0\u00a0In consequence, the Military Commission Order was replaced by the Military Commissions Act of 2006 (\u201cthe 2006 MCA\u201d), 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\u00a0October 2006.<\/p>\n On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 (\u201cthe 2009 MCA\u201d).<\/p>\n 26.\u00a0\u00a0On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings.<\/p>\n 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 \u201cuse of such evidence would otherwise be consistent with the interests of justice\u201d.<\/p>\n 27.\u00a0\u00a0A detailed description of the procedure before the military commission and publicly raised concerns regarding that procedure can be found in Al Nashiri (cited above, \u00a7\u00a7 71-77).<\/p>\n 7.\u00a0\u00a0The 2014 US Senate Committee Report<\/p>\n 28.\u00a0\u00a0In March 2009 the US Senate Intelligence Committee initiated a review of the CIA\u2019s activities involved in the HVD Programme, in particular the secret detention at foreign \u201cblack sites\u201d and the use of the EITs.<\/p>\n That review originated in an investigation that had begun in 2007 and concerned the CIA\u2019s 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.<\/p>\n 29.\u00a0\u00a0The 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.<\/p>\n 30.\u00a0\u00a0On 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\u2019s \u201cStudy of the Central Intelligence Agency\u2019s Detention and Interrogation Program\u201d. The full Committee Study \u2013 as stated therein, \u201cthe most comprehensive review ever conducted of the CIA Detention and Interrogation Program\u201d \u2013 which is more than 6,700 pages long, remains classified. The declassified Executive Summary (\u201cthe 2014 US Senate Committee Report\u201d) comprises 499 pages (for further details concerning the US Senate\u2019s review of the CIA\u2019s activities involved in the HVD Programme see Abu Zubaydah v.\u00a0Lithuania, cited above, \u00a7\u00a7 70-89).<\/p>\n 31.\u00a0\u00a0The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows.<\/p>\n 32.\u00a0\u00a0Conclusion 2 states that \u201cthe CIA\u2019s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness\u201d.<\/p>\n 33.\u00a0\u00a0Conclusion 3 states that \u201c[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others\u201d. It reads, in so far as relevant, as follows:<\/p>\n \u201cBeginning with the CIA\u2019s 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 \u2018wallings\u2019 (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 \u2018an open, nonthreatening approach\u2019, or that interrogations began with the \u2018least coercive technique possible\u2019 and escalated to more coercive techniques only as necessary.<\/p>\n The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became \u2018completely unresponsive, with bubbles rising through his open, full mouth\u2019. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a \u2018series of near drownings\u2019.<\/p>\n 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.\u201d<\/p>\n 34.\u00a0\u00a0Conclusion 4 states that \u201cthe conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others\u201d and that \u201cconditions at CIA detention sites were poor, and were especially bleak early in the programme\u201d. As regards conditions at later stages, the following findings were made:<\/p>\n \u201cEven 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.<\/p>\n Throughout the program, multiple CIA detainees who were subjected to the CIA\u2019s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.<\/p>\n Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.\u201d<\/p>\n 35.\u00a0\u00a0Conclusion 8 states that \u201cthe CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies\u201d, including the Federal Bureau of Investigation (\u201cthe FBI\u201d), the State Department and the Office of the Director of National Intelligence (\u201cthe ODNI\u201d). In particular, the CIA withheld or restricted information relevant to these agencies\u2019 missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them.<\/p>\n 36.\u00a0\u00a0The findings under Conclusion 8 also state that, while the US authorities\u2019 access to information about \u201cblack sites\u201d 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:<\/p>\n \u201cThe 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.<\/p>\n 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.\u201d<\/p>\n 37.\u00a0\u00a0Conclusion 14 states that \u201cCIA 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\u201d.<\/p>\n 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.<\/p>\n 38.\u00a0\u00a0Conclusion 15 states that \u201cthe 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\u201d. 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\u2019s EITs, were inaccurate. The Committee\u2019s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA\u2019s enhanced interrogation techniques. Of the 119\u00a0known detainees, at least twenty-six were wrongfully held.<\/p>\n 39.\u00a0\u00a0Conclusion 19 states that \u201cthe CIA\u2019s 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\u201d.<\/p>\n 40.\u00a0\u00a0It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities.<\/p>\n According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6\u00a0September 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.<\/p>\n Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA\u2019s 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\u2019s detention facility in that country.<\/p>\n 41.\u00a0\u00a0In early 2004, the anticipation of the US Supreme Court\u2019s decision to grant certiorari in the case of Rasul v. Bush (where, subsequently, the Supreme Court held that foreign nationals detained in Guant\u00e1namo 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 Guant\u00e1namo Bay (see also paragraph 50 below).<\/p>\n 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.<\/p>\n 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.<\/p>\n 42.\u00a0\u00a0According 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\u2019s ability to operate clandestine detention facilities.<\/p>\n 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.<\/p>\n 43.\u00a0\u00a0Finally, Conclusion 20 states that \u201cthe CIA\u2019s Detention and Interrogation Program damaged the United States\u2019 standing in the world, and resulted in other significant monetary and non-monetary costs\u201d.<\/p>\n 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\u2019s political concerns.<\/p>\n 44.\u00a0\u00a0According to the 2014 US Senate Committee Report:<\/p>\n \u201cto 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 \u2018wish lists\u2019 of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to \u2018think big\u2019 in terms of that assistance\u201d.<\/p>\n 8.\u00a0\u00a0Identification 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<\/p>\n 45.\u00a0\u00a0In 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: \u201cDetention Site Green\u201d, \u201cDetention Site Cobalt\u201d, \u201cDetention Site Black\u201d, \u201cDetention Site Blue\u201d, \u201cDetention Site Gray\u201d, \u201cDetention Site Violet\u201d, \u201cDetention Site Orange\u201d and \u201cDetention Site Brown\u201d.<\/p>\n 46.\u00a0\u00a0The 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, \u00a7\u00a0159; and Abu\u00a0Zubaydah v. Lithuania, cited above, \u00a7 166).<\/p>\n B.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 47.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Restrictions on information about the applicant\u2019s secret detention and his communication with the outside world<\/p>\n 48.\u00a0\u00a0The 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 Guant\u00e1namo, the Prison Camp No. 7 personnel and members of the military commission. He is prevented under the military commission\u2019s rules from speaking publicly \u2013 either directly or through his US military counsel \u2013 about his torture, ill-treatment, secret detention and rendition.<\/p>\n 2.\u00a0\u00a0The applicant\u2019s capture, transfer to CIA custody and detention before his alleged rendition to Lithuania<\/p>\n 49.\u00a0\u00a0The applicant states that in March 2003 he was captured by the Pakistani forces in Rawalpindi, Pakistan and transferred to US authorities\u2019 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 Guant\u00e1namo Bay, Cuba. He was detained at the CIA\u2019s detention facility in Guant\u00e1namo until most probably 27 March 2004, the date on which the rendition plane transporting CIA prisoners flew from Guant\u00e1namo 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 Guant\u00e1namo Bay to Bucharest, Romania.<\/p>\n 50.\u00a0\u00a0The 2014 US Senate Committee Report, in the section entitled \u201cUS Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guant\u00e1namo to Bay to Country [name REDACTED]\u201d (see also paragraph 41 above), states:<\/p>\n \u201cBeginning 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 Guant\u00e1namo 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 Guant\u00e1namo 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.<\/p>\n 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 Guant\u00e1namo Bay should remain in Guant\u00e1namo Bay or be moved pending the Supreme Court\u2019s 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 Guant\u00e1namo Bay pending the Supreme Court\u2019s 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 Guant\u00e1namo Bay to other CIA detention facilities.\u201d<\/p>\n 51.\u00a0\u00a0In his application, the applicant has not indicated the location of the site or sites at which he was held after his transfer from Guant\u00e1namo Bay until his rendition to Lithuania. He maintains that the EITs were first used against him at Detention Site Cobalt.<\/p>\n 52.\u00a0\u00a0The 2014 US Senate Committee Report confirms that in the course of his detention the applicant was subjected to unapproved EITs, including \u201cwater dousing\u201d. 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:<\/p>\n \u201c[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 \u2018could be indistinguishable from the waterboard\u2019. An email from the interrogator stated that:<\/p>\n \u2018We 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.<\/p>\n I have real problems with putting one of them on the water board for \u2018dousing\u2019. 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.\u2019<\/p>\n [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, \u2018can easily approximate waterboarding\u2019. 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\u2019s 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\u2019s experience reflected \u2018the way water dousing was done at [DETENTION SITE COBALT]\u2019 and that this method was developed with guidance from CIA CTC attorneys and the CIA\u2019s Office of Medical Services.\u201d<\/p>\n 3.\u00a0\u00a0The applicant\u2019s alleged rendition to Lithuania, his secret detention at Detention Site Violet and his rendition from Lithuania<\/p>\n 53.\u00a0\u00a0The applicant states that, on the basis of research into the CIA\u2019s rendition operations, it is believed that he was rendered by the CIA to Lithuania on one of the following three rendition flights into Lithuania:<\/p>\n (a)\u00a0\u00a0N724CL, from Rabat to Vilnius, on 17 February 2005;<\/p>\n (b)\u00a0\u00a0N787WH, from Rabat, via Bucharest, to Palanga, on 18 February 2005;<\/p>\n (c)\u00a0\u00a0N787WH, from Bucharest to Vilnius, on 6 October 2005; via a so\u2011called \u201cdouble-plane switch\u201d in Tirana, involving N787WH and the plane N308AB which flew from Bucharest. The \u201cdouble-switch\u201d 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 \u201cDetention Site Violet\u201d in the 2014 US Senate Committee Report and referred to as \u201cProject No. 2\u201d in an inquiry conducted by the Lithuanian Parliament (see paragraphs 60-61 below).<\/p>\n In the applicant\u2019s submission, he was transferred out of Lithuania on 25\u00a0March 2006 on board the rendition plane N733MA via Cairo and another \u201cdouble-plane switch\u201d, 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.<\/p>\n 54.\u00a0\u00a0Relying 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 \u201cDetention Site Brown\u201d in the 2014 US Senate Committee Report.<\/p>\n 4.\u00a0\u00a0Detention Site Violet in the 2014 US Senate Committee Report<\/p>\n 55.\u00a0\u00a0In the chapter entitled \u201cPress Stories and the CIA\u2019s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]\u201d, the section referring to the closure of Detention Site Black and Detention Site Violet reads as follows:<\/p>\n \u201c[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\u2019s medical emergency would be handled. While the CIA understood the [REDACTED] officers\u2019 reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the \u2018willingness of [REDACTED] to participate as originally agreed\/planned with regard to provision of emergency medical care\u2019. 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].<\/p>\n …<\/p>\n 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.\u201d<\/p>\n 5.\u00a0\u00a0The Court\u2019s findings of fact in Abu Zubaydah v. Lithuania in respect of the rendition planes indicated by the applicant and Detention Site Violet<\/p>\n 56.\u00a0\u00a0A summary of the Court\u2019s findings in the above case (see Abu\u00a0Zubaydah v. Lithuania, cited above, \u00a7 532) reads as follows:<\/p>\n \u201cConsequently, the Court considers the applicant\u2019s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that:<\/p>\n (a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania;<\/p>\n (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<\/p>\n (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.\u201d<\/p>\n 57.\u00a0\u00a0The Court\u2019s findings in respect to the N787WH\u2019s landing in Vilnius on 6 October 2005 (see Abu Zubaydah v. Lithuania, cited above, \u00a7 507) read as follows:<\/p>\n \u201c(b)\u00a0\u00a0The N787WH\u2019s circuit on 1-7 October 2005 was disguised by both the \u2018dummy\u2019 flight planning and switching aircraft in the course of the rendition operation, also called a \u2018double-plane switch\u2019 \u2013 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, \u00a7 135).<\/p>\n The experts testified that the \u2018double-plane switch\u2019 operation had been executed on 5-6 October 2005 in Tirana by two planes \u2013 N308AB, which arrived there from Bucharest after collecting detainees from the CIA \u2018black site\u2019 in Romania, and N787WH. The CIA detainees \u2018switched\u2019 planes in Tirana and they were transferred from N308AB onto N787WH for the rendition flight. On its departure from Tirana, N787WH filed a false plan to Tallinn in order to enable the flight to enter Lithuanian airspace, but its true destination was Vilnius, where it landed on 6 October 2005 in the early hours (see paragraphs 114, 130-131 and 140 above).<\/p>\n In relation to this flight it is also noteworthy that the flight data submitted by the Lithuanian aviation authorities to the CNSD in the course of the Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey (see paragraph 174 above). Witnesses questioned in the pre-trial investigation gave inconsistent indications as to where the plane arrived from. For instance, Witness B3 spoke of an \u201cunplanned aircraft from Antalya\u201d (see paragraph 315 above). Witness B4 (\u2018person B\u2019) said that it had \u2018arrived from Tallinn without passengers\u2019 and that it had \u2018arrived in Tallinn from Antalya\u2019 (see paragraph 316 above). The Administration of Civil Aviation, for its part, informed the prosecutor that \u2018they could [have] confuse[d] the code of Antalya and Tirana due to their similarity\u2019 (see paragraph 183 above).\u201d<\/p>\n 58.\u00a0\u00a0A detailed analysis of evidence before the Court regarding the question of whether a CIA secret detention facility existed in Lithuania from 17 or 18 February 2005 to 25 March 2006 and elements on which the Court reached the above conclusions can be found in paragraphs 498-531 of the Abu Zubaydah v. Lithuania judgment.<\/p>\n 6.\u00a0\u00a0The applicant\u2019s trial before the military commission<\/p>\n 59.\u00a0\u00a0On 5 June 2008 the applicant, together with Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz and Mohamed al Khatani was arraigned on capital charges before the military commission. The charges aginst the applicant include terrorism and murder for providing financial and logistical support. The case name is US v. Mohammad, et al. The proceedings are pending.<\/p>\n 7.\u00a0\u00a0Parliamentary inquiry in Lithuania<\/p>\n 60.\u00a0\u00a0On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (\u201cthe CNSD\u201d) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed.<\/p>\n 61.\u00a0\u00a0On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country.<\/p>\n 62.\u00a0\u00a0On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskait\u0117, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had \u201cindirect suspicions\u201d that it could have been in Lithuania.<\/p>\n 8.\u00a0\u00a0The Seimas investigation and findings<\/p>\n 63.\u00a0\u00a0On 5\u00a0November 2009 the Seimasadopted Resolution No.\u00a0XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory.<\/p>\n The following questions were posed to the CNSD:<\/p>\n (1)\u00a0\u00a0whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania;<\/p>\n (2)\u00a0\u00a0whether secret CIA detention centres had operated on the territory of the Republic of Lithuania;<\/p>\n (3)\u00a0\u00a0whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania.<\/p>\n 64.\u00a0\u00a0The findings of the inquiry are included in the Annex to the Seimas\u2019Resolution No. XI-659 of 19 January 2010 \u2013 \u201cFindings of the parliamentary investigation by the SeimasCommittee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania\u201d (\u201cCNSD Findings\u201d). The relevant passages from that document are extensively cited in Abu Zubaydah v.\u00a0Lithuania and can be found in paragraph 174 of that judgment.<\/p>\n 9.\u00a0\u00a0Criminal investigation in Lithuania<\/p>\n 65.\u00a0\u00a0On 13 September 2013 the applicant asked the Prosecutor General of the Republic of Lithuania to open an investigation into his alleged extraordinary rendition, secret detention, torture and ill-treatment under the CIA HVD Programme in Lithuania. The request was refused.<\/p>\n 66.\u00a0\u00a0Following the applicant\u2019s appeal, on 28 January 2014 the Vilnius Regional Court quashed the prosecutor\u2019s decision refusing to open an investigation.<\/p>\n 67.\u00a0\u00a0On 13 February 2014 the Prosecutor General\u2019s Office instituted a pre-trial investigation No. 01-2-00015-14 regarding offences of unlawful transportation of persons across the State border and abuse of office by State officials.<\/p>\n 68.\u00a0\u00a0Throughout 2014, the applicant submitted a number of requests for information regarding the progress in the investigation. In his submission, no substantive responses to these queries were given by the authorities.<\/p>\n 69.\u00a0\u00a0On 27 January 2015, the Prosecutor General\u2019s Office had asked the Cracow Prosecutor of Appeal in Poland for legal assistance \u201cin relation to the alleged unlawful transportation of Mr\u00a0Mustafa Ahmed al-Hawsawi or other persons across the Lithuanian State border\u201d.<\/p>\n 70.\u00a0\u00a0On 6 February 2015 the investigation into the applicant\u2019s allegations was joined with investigation No. 01-2-000-16-10 concerning Mr Abu Zubaydah (see Abu Zubaydah v. Lithuania, cited above, \u00a7\u00a7 208-10).<\/p>\n 71.\u00a0\u00a0On 29 May 2015 the Prosecutor General\u2019s Office asked the Prosecutor\u2019s Office attached to the Court of Cassation in Romania for legal assistance. Subsequently, requests for legal assistance were also sent to the US authorities, Morocco and Afghanistan. The US authorities, having been addressed twice, replied that they could not provide the information requested. Morocco refused the request.<\/p>\n 72.\u00a0\u00a0In the course of the investigation the applicant asked the authorities to grant him victim status pursuant to Article 28 of the Criminal Code. He made the relevant requests on 9 January and 26 August 2015. He also requested that the scope of the investigation be expanded to consider other potential criminal offences. The requests were rejected by the prosecutor\u2019s resolution of 27 November 2015. The applicant appealed against decisions refusing to grant him victim status but they were finally upheld by the Vilnius Regional Court on 30\u00a0June 2016.<\/p>\n 73.\u00a0\u00a0The proceedings are still pending.<\/p>\n C.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 74.\u00a0\u00a0The relevant domestic law and practice are set out in Abu Zubaydah v. Lithuania (cited above, \u00a7\u00a7 212-19).<\/p>\n COMPLAINTS<\/p>\n 75.\u00a0\u00a0The applicant\u2019s complaints can be summarised as follows.<\/p>\n (a)\u00a0\u00a0Lithuania violated Article 3 of the Convention in its substantive aspect through its complicity in the CIA\u2019s extraordinary rendition programme in that it permitted and\/or enabled the US authorities to subject the applicant to torture and ill-treatment on its territory and failed to take measures to ensure that he was not subjected to torture or ill-treatment.<\/p>\n Lithuania\u2019s failure to take measures to prevent the applicant\u2019s transfer from its territory and facilitation of such transfer without seeking any assurances, despite the existenceofareal riskthathewouldbe subjected to further treatment contrary to Article 3 constitutes a further violation of that Article.<\/p>\n (b)\u00a0\u00a0By failing to carry out an effective investigation into the applicant\u2019s allegations of serious violations of the Convention, Lithuania has violated Article 3 of the Convention in its procedural aspect. The applicant\u2019s allegations concerning arbitrary, undisclosed detention and torture and ill-treatment in Lithuania have not been adequately or effectively investigated. The ongoing pre-trial investigation lacks the requisite transparency, is not prompt, adequate or thorough given its limited scope, and does not allow the applicant, as a victim, to participate in the proceedings.<\/p>\n (c)\u00a0\u00a0Lithuania was in breach of Article 5 of the Convention since it collaborated with the CIA, permitting and\/or enabling it to establish a secreted detention facility and, through this conduct and the use of special arrangements for rendition flights to enter and leave its territory, Lithuania facilitated and\/or assisted the US authorities\u2019 rendition of the applicant to Lithuania, his secret, incommunicado detention, and his transfer to further undisclosed, arbitrary detention. The applicant was arbitrarily detained, unacknowledged and outside of any legal process in Lithuania. The applicant\u2019s transfer from Lithuania, permitted and\/or enabled by Lithuania, exposed him to the real and foreseeable risk that he would be subjected to further arbitrary, undisclosed and indefinite detention in flagrant violation of Article 5.<\/p>\n (d)\u00a0\u00a0Lithuania\u2019s facilitation of the applicant\u2019s transfer from its territory, although authorities knew \u2013 or ought to have known \u2013 at the time that there was a real and serious risk that he would be transferred to a jurisdiction of military commissions where he would be subjected to a flagrantly unfair trial, breached its obligations under Article 6 of the Convention.<\/p>\n (e)\u00a0\u00a0Lithuania violated the applicant\u2019s rights under Article 8 by permitting and\/or enabling the CI to subject him to physical abuse and to deprive him of any contact with his family.<\/p>\n (f)\u00a0\u00a0By knowingly permitting and\/or enabling the CIA to transfer the applicant from its territory, despite substantial grounds for believing that there was a real and serious risk that he would be subjected to the death penalty in the procedure before the military commission, Lithuania violated Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention.<\/p>\n (g)\u00a0\u00a0Lastly, Lithuania was in breach of Article 13 of the Convention by failing to provide the applicant with an effective remedy in respect of serious violations of the applicant\u2019s rights under Articles 2, 3, 5, 6 and 8 of the Convention and Article 1 of Protocol No. 6 to the Convention.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n As to the facts<\/p>\n 1.\u00a0\u00a0Was the applicant detained in Lithuania at the CIA secret detention facility, referred to as \u201cDetention Site Violet\u201d in the 2014 US Senate Committee Report, from 17 or 18 February or 6 October 2005 to 25 March 2006?<\/p>\n In that regard, the parties are asked to refer to the Court\u2019s findings in Abu\u00a0Zubaydah v. Lithuania (no.46454\/11<\/a>, judgment of 31 May 2018) regarding the operation of the CIA secret detention facility codenamed \u201cDetention Site Violet\u201d from 17 or 18\u00a0February 2005 to 25 March 2006 in Lithuania (see \u00a7\u00a7\u00a0498-532 of the said judgment). They are also asked to refer to evidence regarding Mustafa al-Hawsawi\u2019s detention under the CIA HVD Programme (see Abu Zubaydah v. Lithuania, \u00a7\u00a7 135, 149 and 542).<\/p>\n As to territorial jurisdiction<\/p>\n 2.\u00a0\u00a0Do the facts of the present case fall within jurisdiction of Lithuania within the meaning of Article 1 of the Convention?<\/p>\n In that regard, the parties are asked to refer, in particular, to Abu\u00a0Zubaydah v. Lithuania (see\u00a7\u00a7 579-87 of the said judgment).<\/p>\n As to the alleged violations of the Convention<\/p>\n Articles 3 (substantive aspect), 5 and 8 of the Convention<\/strong><\/em><\/p>\n 3.\u00a0\u00a0Have the Lithuanian authorities been responsible for a violation of the applicant\u2019s rights under Article 3 (substantive aspect), Article 5 and Article 8 of the Convention on account of:<\/p>\n (a)\u00a0\u00a0allegedly enabling the CIA to transfer the applicant to Lithuania and to detain him on their territory secretly, torture and ill-treat him, deprive him of contact with the outside world and his family, and subject him to various forms of mental and physical abuse; and<\/p>\n (b)\u00a0\u00a0allegedly enabling the CIA to transfer the applicant from Lithuania, in spite of a serious risk that he would be subjected to further torture, ill-treatment, unacknowledged, incommunicado detention, deprived of contact with the outside world and his family, and subjected to further mental and physical abuse in CIA custody?<\/p>\n In that regard, reference is made, in particular, to Abu Zubaydah v.\u00a0Lithuania (see \u00a7\u00a7 641, 657 and 665 of the said judgment).<\/p>\n Article 6 of the Convention<\/strong><\/em><\/p>\n 4.\u00a0\u00a0Have the Lithuanian authorities been responsible for a violation of the applicant\u2019s rights under Article 6 of the Convention on account of allegedly enabling the CIA to transfer the applicant from Lithuania to a jurisdiction where he faced a serious risk of receiving a flagrantly unfair trial?<\/p>\n