NEW YORK—The European Court of Human Rights has told Romania to provide answers and specific documents in the case of Abd al-Rahim al-Nashiri, a Saudi national who was imprisoned and tortured at a secret CIA detention facility on Romanian soil before being transferred to the US military base at Guantanamo Bay, Cuba.
This is the second time in the last few months that the European Court has ordered a European country to turn over documents relating to its complicity in the CIA’s secret detention program. In July 2012, in the context of a separate case brought by the Open Society Justice Initiative against Poland, the European Court similarly ordered Poland to supply answers and documents relating to al-Nashiri’s detention on a secret CIA prison on Polish territory.
Al-Nashiri’s case against Romania was brought before the European Court by the Open Society Justice Initiative on June 1, 2012. The communication from the court is a significant step forward for the case as only about ten percent of all cases brought before the court make it to this phase.
Al-Nashiri is currently detained at Guantanamo, where he awaits trial by military commission on capital charges arising from his alleged involvement in the bombing of the U.S.S. Cole in Aden harbor in 2000 and other acts.
The European Court has asked Romania if al-Nashiri was held in a secret detention facility in Romania and if there exists a document (agreement) on setting up and running a secret detention facility on Romanian territory prepared by the Romanian authorities. If such a document exists, the court asks the Government to confidentially supply it to the court.
The court has also asked the Romanian government to confidentially “supply materials showing whether his detention in Romania has been established” following his request for an investigation filed on May 29, 2012.
As it did with respect to Polish government, the court also asks the Romanian government to confidentially describe in a detailed manner the course of the investigation, procedural and other decisions taken in, or in connection with, the investigation, its scope and the full list of offences investigated. It also asks the Romanian government is “to indicate the circle of suspects and charges against them and submit the relevant decisions and documents.”
Romania must respond to the court by November 21.
Romania’s consistent denials of a secret CIA prison on its territory indicate that it will not conduct an effective investigation into al-Nashiri’s claims, and as such al-Nashiri is not required to exhaust domestic remedies which plainly would be ineffective. However, on May 29, 2012, the Open Society Justice Initiative filed a criminal complaint on his behalf before the Romanian General Prosecutor so that he will not later be prejudiced by a failure to attempt to exhaust domestic remedies before filing a case before the European Court. The General Prosecutor has acknowledged that the complaint has been registered and assigned a file number, and that its review is at a preliminary stage. However, thus far there has been no official decision to open a criminal investigation into al-Nashiri’s claims.
“The European Court is rightly giving al-Nashiri’s claims the consideration they deserve,” said Amrit Singh, Senior Legal Officer at the Open Society Justice Initiative. “U.S. courts may have closed their doors to CIA torture victims, but the European Court has once again demonstrated that it remains open for justice. We hope that it will deliver justice by holding Romania accountable for its complicity in the CIA torture and rendition program.”
Al-Nashiri was secretly detained by the CIA in Romania some time between June 6, 2003 and September 6, 2006. An official transcript of a 2007 Combatant Status Review Tribunal hearing records al-Nashiri stating that, "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.” He added: “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”. He also stated at another point that “they used to drown me in water. So I used to say yes, yes”.
During his detention in Poland from December 5, 2002 until June 6, 2003, U.S. interrogators subjected al-Nashiri to mock executions with a power drill as he stood naked and hooded; cocked 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.
The European Court is also currently reviewing arguments in a third case—against Macedonia—involving European complicity in the CIA's program of secret detention and rendition. In a complaint filed on his behalf by the Open Society Justice Initiative, Khaled El-Masri, a German citizen, has accused Macedonia of illegally detaining him in 2004, and then handing him over to the CIA, which held him secretly for over three months in Afghanistan before releasing him without charge.