September 10, 2014
This guest post was written by Amrit Singh. Amrit Singh is Senior Legal Officer for National Security and Counterterrorism at the Open Society Justice Initiative and acted as counsel in al Nashiri v. Poland.
In the woods, about 160 kilometres north of Warsaw, in a village called Stare Kiejkuty, sits a Polish intelligence base that was used during World War II by German intelligence officials and later by the Soviet military. More recently, during 2002 and 2003, in a joint operation with the Polish authorities, the CIA secretly imprisoned, tortured and ill-treated Abd al Rahim al Nashiri and Abu Zubaydah on that base. There, in a secluded villa hidden from sight, CIA interrogators subjected our client, al Nashiri, to mock executions while he stood naked and hooded before them; to painful stress positions that nearly dislocated his arms from his shoulders; and to threats of bringing in his mother to sexually abuse her in front of him.
On July 24, 2014, the European Court of Human Rights became the first Court to adjudicate through two cases–al Nashiri v. Poland, and Husayn (Abu Zubaydah) v. Poland–the flagrant rule of law violations associated with this joint operation.
The judgments are profoundly important for several reasons. First, the Court confirmed for the first time what the Polish government has refused to acknowledge for over a decade despite overwhelming evidence to the contrary—that Poland hosted a secret CIA prison where detainees were tortured. In light of the overwhelming secrecy associated with these operations, and the consistent attempts of Poland and the U.S. to cover up the truth, this finding alone is of crucial significance.
Second, the Court’s decision is vitally important for ending impunity for European complicity in CIA secret detention and torture. In the first decision of its kind, the Court held Poland accountable for numerous violations of the European Convention arising from its hosting of the secret prison. The Court found that Poland violated Article 3 through its complicity in the CIA programme by enabling U.S. authorities to subject the applicants to torture and ill-treatment on its territory; that Poland violated Article 5 on account of the applicants’ undisclosed detention on Polish territory; and that Poland’s actions and omissions in respect of the applicants’ detention and transfer also amounted to an interference with their right to private and family life under Article 8. The Court found additional violations based on Poland’s assistance to the U.S. in transferring the applicants from Poland to situations where they were at real risk of torture or other mistreatment, being subjected to a flagrant denial of justice through trial by U.S. military commission, and (in the case of al Nashiri) being subjected to the death penalty. The Court also held that Poland violated Articles 3 and 13 by failing to conduct an effective investigation and afford effective remedies with respect to the applicants’ allegations of serious violations of the Convention. The judgments awarded damages of €100,000 to each applicant. (Abu Zubaydah was also awarded €30,000 in respect of costs and expenses). Finally, the Court ruled that Poland violated Article 38 due to its refusals to comply with the Court’s evidential requests. While the judgement is important for holding Poland accountable, it also has significant implications beyond Poland, because it is directly relevant for other cases also pending before the European Court that challenge Romania’s and Lithuania’s hosting of secret CIA prisons.
Third, the court’s ruling deals with more than the events of the past. Our client, Abd al Rahim al Nashiri, is currently facing capital charges before a U.S. military commission in Guantánamo Bay, linked to his alleged role in the 2000 attack on the USS Cole warship in Aden harbour. The European Court’s ruling delivered a damning indictment of this military court system. It held that Poland had violated the Convention by enabling al-Nashiri’s transfer out of the country despite the real risk that he would face a “flagrant denial of justice,” before a tribunal that was neither sufficiently impartial nor independent, as well as the risk of a death sentence. Beyond that, the court has called on Poland to seek diplomatic assurances from the U.S. that al Nashiri will not face the death penalty.
Finally, the judgments place the European Court in stark and favourable contrast to U.S. courts that have failed to afford justice to victims of CIA torture. As such, the message from the European Court was unmistakable: such abuses will not be tolerated in modern Europe, and those who participate in such abuses will be held accountable. In other words, the European Court’s doors remain open for justice.