Poland’s Damaging Failure to Respond to CIA Black Site Case

There is much to applaud in Poland’s readiness to abide by and to implement the decisions of the European Court of Human Rights.

In December 2011, the National Council of the Judiciary of Poland (Krajowa Rada Sądownictwa, KRS) adopted a well-thought-out list of recommendations concerning the execution of judgements of the Strasbourg court. In February 2013, members of the KRS debated how to improve these recommendations, and which practices to introduce more broadly. The Polish National School of Judiciary and Public Prosecution (Krajowa Szkoła Sądownictwa i Prokuratury) provides periodic training for judges in the European Court’s standards. Examples of good practices can be multiplied.

There is, however, a fly in this ointment, namely the way the Polish Government is handling the case of Al-Nashiri v. Poland. The applicant, Abd al-Rahim al-Nashiri,  claims that he was detained in the Republic of Poland in the so-called clandestine CIA prison established in Stare Kiejkuty between December 2002 and September 2003. He not only alleges that he was subjected to a protracted investigation but also makes material allegations—being subjected to torture in Poland, being held incommunicado and, finally, being sent to a country where he faces death penalty. A military commission currently in session at Guantanamo Bay, where he was shipped from Poland, may indeed sentence him to death.

Governments of all member states of the Council of Europe should thoroughly cooperate in clarifying matters brought before the ECHR. For twenty years Poland has been a shining example of excellent cooperation with the ECHR, which earned us respect and esteem.

What is more, the Polish government’s good record up to this point has reinforced its position in the so-called Katyń case (application Janowiec and others v. Russia), where it has pointed to Russia’s contrasting failure to provide documents to the court related to its incompete investigation into the 1942 massacre of Polish POWs by Soviet troops.

In Al-Nashiri v. Poland, the Polish government seems to be taking its cues from governments of non-democratic states. We have begun to disregard the European Court in Strasbourg. In spite of clear enquiries and requests, and in spite of the ECHR’s assurances that documents provided will remain confidential, Poland has opted not to cooperate. The Polish government has only submitted several pages of observations, which have not added anything new to the case. Not surprisingly, therefore, the annoyed ECHR has decided that the proceedings will be public. After all, if no confidential documents have been provided, why should the case be considered in secret?

The European court in Strasbourg is not the first international institution whose efforts to explain the issue of CIA prisons in Poland have been disregarded or ignored. Special commissions of the Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament had received the same treatment.

Yet the refusal to cooperate with the ECHR has much more serious consequences. For the first time, the Polish Government is sending a clear signal that it does not treat the ECHR with due respect. In fact, the current internal policy has prevailed over the necessity to respect the basic standards.

Does this all have anything to do with the way the judiciary system and public prosecution operate in Poland? Well, it does.

First of all, after the Al-Nashiri case Polish courts may come to believe that if the highest authorities do not take the European Court in Strasbourg seriously, then it is not even worth applying the European Convention on Human Rights at all.

The Polish courts are already quite sceptical about the authority of ECHR rulings, as evidenced by adverse reactions to attorneys’ requests that cite ECHR rulings.  Now the government is sending the message that the Strasbourg is not so important after all. This approach is one step away from a situation where the courts disregard the decisions of the ECHR when adjudicating.

Secondly, the Polish authorities are once again showing that it is not worth following principles when human rights are at stake. The general attitude, judging from numerous statements, seems to be: “So what if people were tortured in Poland if we did not have a hand in it. We only knew that planes were landing there, and the Americans were responsible for the rest.” 

And yet, in accordance with Article 40 of the Constitution, the prohibition of torture and inhuman or degrading treatment is absolute. One should sound the alarm whenever this prohibition is violated, a responsibility which falls on judges, among others.

Thirdly, views are emerging that since Romania and Lithuania have successfully swept the issue of the CIA prisons under the rug (at least for now), Poland should follow suit instead of letting itself get dragged through international courts.

The problem is that civil society, some experts or journalists have much higher expectations of the authorities, including courts and public prosecution. As the leader in transformation and the leader in the region, we in Poland should act like a leader also when principles are at stake. We should learn from the best, namely Sweden, Denmark, Great Britain or Italy, which have successfully explained the cooperation with the CIA, and not from countries where public opinion is not strong enough to pressure politicians to take action in matters of substance.

The issue of the CIA prisons is bound to come back to haunt Poland for many years to come. What we have learnt from it so far is: that politicians in Poland tend to depart from the truth; that public opinion has been letting itself be led by the nose for years; that public prosecution is independent, though not completely so; and that European institutions can be effectively ignored.

Most importantly, as far as the justice system is concerned, this issue shows that basic legal norms can be disregarded when convenient.