Al-Nashiri v. Poland

Court:
European Court of Human Rights
Country:
Poland
Status:
Closed

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Justice Initiative, May 6, 2011.
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Poland Complicit in Rendition, Detention, and Torture at CIA Black-Site Prison

In 2002 and 2003, Poland hosted a secret CIA prison at a military intelligence training base in Stare Kiejkuty where Abd al-Rahim al-Nashiri was held incommunicado and tortured. Poland also assisted in al-Nashiri’s transfer from Poland despite the risk of him being subjected to further torture, incommunicado detention, a flagrant denial of justice through trial by U.S. military commission, and the death penalty. Since 2006, Al-Nashiri has been held at Guantánamo Bay, facing the prospect of an unfair trial by a military commission and ultimately, the death penalty. On July 24, 2014, the European Court of Human Rights delivered a historic judgement confirming that Poland had hosted the secret CIA prison, and holding that Poland had violated the European Convention by enabling al Nashiri’s secret detention and torture in Poland; by enabling his transfer from Poland despite the real risk that his rights would be further violated; by failing to conduct an effective investigation into the violation of his rights; and by failing to comply with the Court’s evidential requests. The Court ordered Poland to seek diplomatic assurances from the US that it would not subject al-Nashiri to the death penalty and to pay Al Nashiri €100,000 in damages.

Facts

Abd al-Rahim Hussayn Muhammed al-Nashiri is a Saudi national who is the victim of a joint U.S.-Polish rendition operation. In October 2002 al-Nashiri was captured in Dubai, UAE, and secretly transferred to CIA custody. He was taken to a secret CIA prison in Afghanistan known as the “Salt Pit,” and then to another black site prison in Bangkok, Thailand, where he was waterboarded. On or about December 5, 2002, the CIA “rendered” al-Nashiri to yet another secret prison in Poland. The Polish authorities provided extraordinary levels of security cover for this flight. In Poland, U.S. interrogators subjected al-Nashiri to mock executions with a power drill as he stood naked and hooded; racked a semi-automatic handgun close to his head as he sat shackled before them; held him in “standing stress positions”; and threatened to bring in his mother and sexually abuse her in front of him. On or about June 6, 2003, Poland assisted the United States in secretly flying al-Nashiri out of Poland, despite the grave risk of his being subjected to further torture, incommunicado detention, a flagrantly unfair trial, and the death penalty in U.S. custody.

After Poland assisted the CIA in transporting al-Nashiri from Poland, the CIA subjected him to further incommunicado detention at a number of secret locations outside Poland. It was not until September 2006 that the United States government first acknowledged that the CIA had secretly detained al-Nashiri overseas, and that he had since been transferred to U.S. custody in Guantánamo Bay.

A heavily redacted transcript of a 2007 closed proceeding held in Guantánamo Bay reveals that al-Nashiri said: “From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way.” Al-Nashiri’s own descriptions of the torture methods applied on him by the U.S. government are blacked out in the transcript. He does, however, state: “Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body.”

Al-Nashiri remains imprisoned in Guantánamo Bay. On April 20, 2011, United States military commissions prosecutors brought charges against him stating their intent to seek the death penalty in his case.

Open Society Justice Initiative Involvement

The Justice Initiative is serving as counsel on behalf of al-Nashiri in proceedings before the European Court of Human Rights against Poland. The application was filed on May 6, 2011.

Timeline

September 21, 2010. Request to intervene in pending criminal investigation filed with the Polish prosecutor.
May 6, 2011. Application and Request for Urgent Relief filed before European Court of Human Rights.
July, 2012. Court communicates case to Polish government.
December 2013. Court conducts an oral hearing in Strasbourg in the cases of al-Nashiri v. Poland and Abu Zubaydah v. Poland.
July 24, 2014. Court delivers a historic ruling confirming for the first time the existence of a CIA “black site” in Poland and finding that Poland violated the following provisions of the Convention:

Secret Detention, Torture, and Ill-Treatment in Poland

  • Poland violated Article 3 through its complicity in the CIA High-Value Detainees Programme in that it enabled the US authorities to subject the applicant to torture and ill-treatment on its territory.
  • Poland violated Article 5 on account of the applicant’s undisclosed detention on Polish territory.
  • Poland’s actions and omissions in respect of the applicant’s detention and transfer also amounted to an interference with his right to private and family life under Article 8, in a manner not “in accordance with the law” and inherently lacking any conceivable justification.

Transfer from Poland

  • Poland violated Article 3 by enabling the transfer of the applicant from its territory despite the existence of a real risk that he would be subjected to treatment contrary to Article 3.
  • Poland violated Articles 2, 3 and Article 1 of Protocol No. 6 to the Convention on account of the transfer of the applicant from Polish territory despite the existence of a real risk that he could be subjected to the death penalty.
  • Poland violated Article 5 by enabling the US authorities to transfer the applicant from its territory, despite the existence of a real risk that he would be subjected to further undisclosed detention;
  • Poland violated Article 6 § 1 of the Convention on account of the transfer of the applicant from Polish territory despite the existence of a real risk that he could face a flagrant denial of justice through trial by U.S. military commission.

Failure to Conduct an Effective Investigation

  • Poland violated the procedural aspect of Article 3 by failing to carry out an effective investigation into the applicant’s allegations of serious violations of the Convention, including torture, ill-treatment and undisclosed detention.
  • Poland violated Article 13 of the Convention on account of the lack of effective remedies in respect of the applicant’s grievances under Article 3 of the Convention.

Failure to Cooperate with the Court

  • Article 38: Poland, by its refusals to comply with the Court’s evidential requests, failed to discharge its obligations under Article 38 of the Convention.
  • The Court orders Poland to seek diplomatic assurances from the US that it would not subject al-Nashiri to the death penalty and to pay Al Nashiri €100,000 in damages.