August 28, 2026
By Vesna Stefanovska
On 7 July 2026, the European Court of Human Rights delivered its judgment in Al Nashiri v. Lithuania. The applicant had been detained for more than five months in a CIA detention facility in Lithuania, resulting in several Convention violations.
In relation to Article 8, the Court found a violation on account of the conditions of his detention, including his unlawful incommunicado detention, isolation and complete deprivation of contact with his family. It also found that, by facilitating his transfer from Lithuania to another CIA detention facility, the Lithuanian authorities had exposed him to a foreseeable risk of further interference with his private and family life (Al Nashiri v. Lithuania, para 178, 212). In relation to Article 6 para 1, the violation concerned Lithuania’s cooperation in and facilitation of his transfer despite the foreseeable risk that he would face proceedings before US military commissions amounting to a flagrant denial of justice. Finally, the violations of Articles 2 and 3, read in conjunction with Article 1 of Protocol No. 6, arose from Lithuania’s assistance in the transfer despite the real and serious risk that the applicant would be exposed to the death penalty. The Article 3 violation in this context therefore concerned the risk of inhuman treatment resulting from the possible imposition and execution of the death penalty, rather than the ill-treatment allegedly suffered during his detention in Lithuania.
The Court declared the applicant’s complaints under the substantive and procedural limbs of Articles 3 and 5, and Article 13 taken together with Article 3, inadmissible under Article 35 para 2 (b), as substantially the same matter had already been examined by the UN Working Group on Arbitrary Detention (WGAD). The Article 5 complaints concerned arbitrary detention, while Article 13 concerned the lack of an effective remedy.
This post briefly analyses Lithuania’s responsibility for its involvement in the CIA extraordinary rendition programme, the Court’s findings under the ECHR, and the significance of the judgment within the broader jurisprudence on secret and incommunicado detention.
The applicant, Mr Abd Al Rahim Husseyn Muhammad Al Nashiri, is a Saudi national of Yemeni descent. His case concerns allegations of torture, ill-treatment, and unacknowledged incommunicado detention. He was one of the CIA’s so-called “high-value detainees”, captured during the “war on terror” and secretly detained in a network of CIA clandestine detention facilities located in several countries.
The US authorities considered the applicant to be one of Al-Qaeda’s most senior figures and alleged that he had been involved in the 1998 East Africa US Embassy bombings. He was also considered a suspect in the bombing of the USS Cole, a US Navy guided-missile destroyer, in Aden, Yemen, in October 2000.
Mr Al Nashiri was captured in Dubai at the end of October 2002 and remained in CIA custody until 6 October 2005. These facts were established by the European Court of Human Rights in Al Nashiri v. Poland (para 91–109 and 401–417) and Al Nashiri v. Romania (para 98–139 and 499–542). Throughout this period, he had no contact with the outside world, except with CIA interrogators and personnel and, later, with counsel representing him before the military commission at Guantánamo Bay. On 5 October 2005, he was transferred to Lithuania in a rendition operation involving two aircraft. He was subsequently detained in a secret CIA prison for approximately five months, until the detention site was closed in March 2006. From Lithuania, Mr Al Nashiri, together with two other detainees, was transferred to Afghanistan, where they were held at Detention Site Orange (Al Nashiri v. Lithuania para 58).
Following the applicant’s transfer to Guantánamo Bay, CIA officials diagnosed him with anxiety and major depressive disorder. According to the Guidelines on Confinement Conditions for CIA Detainees, six standard conditions of confinement were applied during his detention, including the use of blindfolds or hoods designed to disorient detainees, the removal of hair upon arrival, incommunicado detention, solitary confinement, continuous exposure to loud noise, constant lighting, and the use of leg shackles. In support of his allegations of torture and ill-treatment, the applicant submitted, among other documentary evidence, a witness statement by Dr Sam Raphael, an expert in collecting and analyzing records relating to the CIA rendition programme. His statement reconstructed the applicant’s movements and detention throughout the rendition programme. A psychological evaluation submitted in the applicant’s case against Romania (see: Al Nashiri v. Romania para 157) concluded that he suffered from post-traumatic stress disorder.
In 2009, the Lithuanian Seimas Committee on National Security and Defence (CNSD) conducted a parliamentary investigation into allegations concerning the transportation and detention of individuals by the CIA on Lithuanian territory. The Committee established that the State Security Department had received a request from foreign partners to equip facilities in Lithuania suitable for holding detainees. However, it was unable to establish whether CIA detainees had in fact been transported through Lithuania or brought into or removed from its territory.
On 22 January 2010, a pre-trial investigation into alleged abuse of office was opened following the CNSD’s findings regarding the transportation and detention of individuals by the CIA in Lithuania (initially concerning Mr. Zayn Al-Abidin Muhammad Husayn). The investigation was terminated on 14 January 2011 on the grounds that no criminal offence had been committed. It was reopened in 2015 following the publication of the 2014 US Senate Committee Report.
On 30 November 2020, the applicant’s representative requested that the Prosecutor General of Lithuania open an investigation into the alleged involvement of Lithuanian officials and State authorities in the applicant’s extraordinary rendition, secret detention, torture, and ill-treatment in Lithuania (para 103). The Prosecutor General refused to recognize the applicant as a victim within the framework of the pre-trial investigation, and that decision was subsequently upheld by the Chief Prosecutor.
On 22 June 2022, the applicant lodged an application with the European Court of Human Rights. He complained under Article 2 and 3 of the Convention in conjunction with Article1 of Protocol No.6 and Articles 3, 5, 6 para 1, 8 and 13 of the Convention. Mr. Al Nashiri is currently detained at the Guantánamo Bay detention facility in Cuba while the hearings against him before the military commission are scheduled from 21 September to 2 October 2026 at Guantanamo Bay.
The Court found that the applicant’s allegations fell within Lithuania’s jurisdiction and were capable of engaging its responsibility under the ECHR. In assessing the evidence, the Court applied the standard of proof of “beyond reasonable doubt” and established that the applicant had been secretly detained by the CIA for five months. The Court further found that the Lithuanian authorities must have been aware of the CIA’s activities in their country and must have cooperated with the secret detention programme (Al Nashiri v. Lithuania para 57, 142 and 213).
However, the Court declared inadmissible Mr. Al Nashiri’s Article 3, 5 and 13 complaints concerning torture, ill-treatment, and unacknowledged detention under article 35 §2 (b) ECHR. It held that substantially the same complaints had previously been examined, between the same parties and on the same facts, in proceedings before WGAD (Al Nashiri v. Lithuania para 202). In Opinion No. 72/2022, the WGAD determined that the Lithuanian authorities were aware of the arbitrary nature of the applicant’s detention, noting the absence of any demonstrated lawful basis for his deprivation of liberty. Lithuania was held responsible for its complicity in the extraordinary rendition programme and for violating Mr. Al Nashiri’s rights while he was within its territory.
Having regard to all the material and evidence presented, the Court found that the Lithuanian authorities were responsible for the violation of the applicant’s rights under Article 8 of the Convention. Having regard to all the evidence, the Court found Lithuania responsible for violating the applicant’s rights under Article 8. On the basis of the Confinement Guidelines, the Court established beyond reasonable doubt that the applicant had been held as a high-value detainee in conditions involving severe restrictions on his privacy, personal autonomy and ability to communicate with the outside world. It also found that the Lithuanian authorities had hosted CIA Detention Site Violet and knew the nature and purpose of the CIA’s activities there (Al Nashiri v. Lithuania, para 175, 178). The Court further found that, by facilitating the applicant’s transfer from Lithuania to another detention facility, the authorities had exposed him to a foreseeable serious risk of further Convention violations. Their responsibility therefore arose from their knowing participation in the CIA’s secret detention and rendition programme (Al Nashiri v. Lithuania, para 212).
With regard to Article 6 of the Convention, the Court found that Lithuania’s cooperation and assistance in the applicant’s transfer from its territory, despite the existence of a real and foreseeable risk that he would face a flagrant denial of justice in the US proceedings, engaged its responsibility under Article 6 para1 of the ECHR. The same conclusions were reached in Al Nashiri v. Romania and Al Nashiri v. Poland. (Al Nashiri v. Lithuania para 234). Additionally, the Court found that Lithuania’s actions and omissions engaged its responsibility under Articles 2 and 3 of the Convention, taken together with Article 1 of Protocol No. 6, in respect of the applicant’s transfer, despite there being substantial grounds for believing that there was a real and serious risk that he would be subjected to the death penalty (Al Nashiri v. Lithuania para 244).
The judgment in Al Nashiri v. Lithuania represents a significant development in the European Court of Human Rights’ jurisprudence on the CIA extraordinary rendition programme, although its principal contribution lies less in the articulation of a new substantive principle than in the Court’s further development of the evidentiary methodology through which responsibility for clandestine, transnational human rights violations can be established. Building on the Court’s earlier judgments in El-Masri v. Macedonia, Al-Nashiri v. Poland, Al-Nashiri v. Romania, and Abu Zubaydah v. Lithuania, the case consolidates the principle that a Contracting State may incur responsibility where it knowingly enables, facilitates or acquiesces in Convention violations committed by foreign authorities on its territory. The judgment demonstrates how the Court can establish responsibility in circumstances in which the very nature of the impugned operation—secret detention conducted by foreign intelligence personnel and deliberately shielded from public scrutiny—makes conventional forms of direct evidence unlikely to exist. In this respect, Al-Nashiri strengthens the Court’s capacity to adjudicate serious Convention violations where the State’s own conduct has contributed to the creation of an evidentiary vacuum.
A central feature of the judgment concerns the Court’s assessment of jurisdiction and State responsibility. On these issues, the judgment largely consolidates rather than departs from the principles established in the Court’s earlier rendition cases. The Court found that Lithuania’s Convention obligations were engaged because the applicant was detained at a CIA facility operating on Lithuanian territory with the knowledge and cooperation of the Lithuanian authorities. Lithuania’s involvement in establishing and facilitating the detention site therefore brought the applicant within its jurisdiction under Article 1, notwithstanding that the detention was physically carried out by US personnel (Al-Nashiri v. Lithuania, para 139, 179). The Court accordingly assessed Lithuania’s responsibility not solely by reference to acts directly performed by its officials, but also in light of their knowledge of the CIA programme, their cooperation in facilitating the detention facility, and their failure to discharge their own Convention obligations in circumstances where they knew or ought to have known of the risks to the applicant (ibid., para 203).
The judgment’s more distinctive contribution lies in its treatment of evidence. Significantly, the Government did not challenge the Court’s earlier findings in Abu Zubaydah v. Lithuania concerning the existence of a CIA detention facility in Lithuania or the knowledge and cooperation of the Lithuanian authorities. The principal factual dispute was instead whether Mr Al Nashiri had actually been transferred to and detained at that facility. In resolving this question, the Court relied on a cumulative assessment of mutually reinforcing evidence and concluded beyond reasonable doubt that the applicant had been held at the Lithuanian site for approximately five months. As in its earlier rendition cases, the Court recognized that allegations concerning covert intelligence operations cannot ordinarily be established through direct documentary evidence alone. It therefore reconstructed the relevant events from a combination of evidentiary sources, including the Court’s previous findings, the 2014 United States Senate Select Committee Report, the findings of the Lithuanian Seimas, expert evidence concerning CIA rendition flights and detention-site records, and the factual findings of the WGAD (Al-Nashiri v. Lithuania, para 101, 174, 200). Particularly significant was the Court’s reliance on the expert reconstruction of CIA cable 3910 (classified CIA communication), which provided a further link between the applicant and the Lithuanian detention facility ( Al Nashiri v. Lithuania para 128). The Court thus illustrates that, in the context of clandestine State activity, proof need not take the form of a single dispositive document: a sufficiently strong, clear and concordant body of circumstantial evidence may establish an applicant’s presence and detention beyond reasonable doubt.
The Court’s evidentiary reasoning is particularly important because it addresses the structural problem created when the State itself has participated in an operation designed to leave little conventional evidence behind. Rather than allowing the absence of official detention records to operate straightforwardly against the applicant, the Court took account of Lithuania’s own position as a State that had enabled the CIA detention facility to operate on its territory. In this context, the Court emphasized the Lithuanian authorities’ obligations to secure information capable of identifying persons brought into the country and refused to treat the resulting absence of documentation as an evidentiary advantage for the Government. The judgment therefore suggests an important methodological principle for cases involving clandestine State conduct: the assessment of evidence cannot be separated from the State’s own capacity and obligation to preserve information concerning persons subjected to coercive measures on its territory. Where secrecy, non-registration and the absence of official records are characteristics of the impugned operation, the resulting evidentiary deficit should not automatically be borne by the individual who seeks to establish the violation.
The judgment is also noteworthy for the interaction between the Court’s reasoning and the findings of the WGAD. Although the Court declared inadmissible the applicant’s complaints under Articles 3, 5 and 13 because substantially the same matters had already been examined by the WGAD, it nevertheless relied upon the WGAD’s factual findings as part of the broader evidentiary record. In particular, the WGAD had concluded that Lithuania knowingly participated in the applicant’s arbitrary detention and had contributed to his extraordinary rendition (Al-Nashiri v. Lithuania, para 121). The Court’s approach illustrates an important form of complementarity between regional and universal human rights mechanisms. The fact that another international body has already examined a complaint may preclude the Court from examining the same matter again under Article 35 para 2 (b), but it does not necessarily deprive that body’s factual findings of evidentiary relevance in proceedings concerning other aspects of the case. The judgment therefore demonstrates how findings generated by different international mechanisms can contribute cumulatively to the reconstruction of facts surrounding violations that are inherently difficult to establish through conventional judicial evidence.
The judgment represents a significant continuation of the European Court of Human Rights’ jurisprudence on extraordinary rendition and State responsibility for cooperation with secret detention programmes. The persistence of secret detention practices and transnational transfers in the context of counter-terrorism operations demonstrates a failure to adhere to fundamental human rights norms, as well as shortcomings in judicial oversight and effective legal and political accountability.
It is deeply concerning that practices involving incommunicado detention, extraordinary rendition, torture, and other forms of ill-treatment have been carried out without a valid legal basis and in clear contradiction with the rule of law and established international standards of human rights protection. The judgment therefore reaffirms that counter-terrorism measures, regardless of their objectives, must remain subject to legal constraints and respect for fundamental rights.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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