Al-Nashiri v. Poland

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

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Justice Initiative, May 6, 2011.
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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 Hussayn Muhammed al-Nashiri was held incommunicado and tortured. Al-Nashiri continues to be held at Guantanamo Bay, where he now faces the prospect of an unfair trial by a military commission and ultimately, the death penalty. A report authored by Council of Europe rapporteur Senator Dick Marty confirms that the Polish government was “knowingly complicit” in CIA rendition operations on Polish soil, entered into a secret agreement with the CIA to enable rendition operations on Polish soil, provided extraordinary levels of security cover for CIA rendition operations on its territory, and actively assisted the CIA in secretly transporting rendition victims like al-Nashiri in and out of the country. Keywords: Torture – rendition.

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 Guantanamo 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.

Arguments

Poland’s treatment of al-Nashiri violates a range of provisions of the European Convention of Human Rights.

Torture and unlawful detention in Poland: Poland violated Article 3 and Article 8 of the European Convention by enabling al-Nashiri’s torture, ill-treatment, and incommunicado detention on Polish territory. It also violated Article 5 by permitting his incommunicado detention there.

Transfer out of Polish territory: The Polish government further violated al-Nashiri’s rights under Article 2, Article 3, and Protocol 6 to the convention by assisting in his transfer from Poland despite a real risk that he would be subjected to the death penalty; under Article 3 by assisting in his transfer despite the real risk of further ill-treatment in U.S. custody; under Article 5 by assisting in his transfer despite a real risk of further incommunicado detention; and under Article 6 by assisting in his transfer from Poland despite the risk of his being subjected to a flagrantly unfair trial.

Failure to Conduct an Effective Investigation: By failing to conduct a prompt and effective investigation into the violation of al-Nashiri’s rights, Poland violated articles 2, 3, 5, and 8, as well as his right to an effective remedy under Article 13.

Right to Truth: The Polish government’s refusal to acknowledge, investigate, and disclose details of al-Nashiri’s detention, ill-treatment, enforced disappearance and rendition violates his and the public’s right to truth under Articles 2, 3,5,10 and 13.

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.