MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-23

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-23 Abu Zubaydah group v. Lithuania (Application No. 46454/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1142, DH-DD(2024)1167, CM/Del/Dec(2023)1475/H46-20

 

Application	Case	Judgment of	Final on	Indicator for the classification
46454/11	ABU ZUBAYDAH	31/05/2018	08/10/2018	Urgent individual measures and complex problem
6383/17	AL-HAWSAWI	16/01/2024	16/04/2024

Case description

This group of cases concerns violations of a number of Convention rights on account of the fact that the applicants were the victims of an “extraordinary rendition” operation. The European Court found it established beyond reasonable doubt that Lithuania had hosted a Central Intelligence Agency (CIA) detention facility, code-named “Detention Site Violet” which operated from either 17 or 18 February 2005 until 25 March 2006, and that the applicants were secretly detained there.[1] They were subsequently transferred by the CIA out of Lithuania to another CIA detention site in Afghanistan and eventually to the United States (US) Internment Facility at the Guantánamo Bay Naval Base in Cuba.

In summary, the violations found by the European Court were as follows:

-       violations of Article 3 (procedural) on account of the Lithuanian authorities’ failure to carry out an effective investigation into the applicants’ allegations of serious violations of the Convention, including inhuman treatment and undisclosed detention;

-       violations of Article 3 (substantive) on account of Lithuania’s complicity in the CIA’s High-Value Detainee programme (“HVD programme”), which enabled the US authorities to subject the applicants to inhuman treatment on its territory and to transfer them to and from its territory, despite a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 in another CIA detention site;

-       violations of Article 5 on account of the applicants’ secret detention on Lithuanian territory and the fact that the Lithuanian authorities had enabled the US authorities to transfer them to another secret CIA detention site, despite a foreseeable serious risk that they would be subjected to further secret detention in another such site;

-       violations of Article 8 because the interference with the applicants’ rights to respect for their private and family life, which had occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, had to be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of Article 8;

-       violations of Article 13 on account of the lack of effective remedies in respect of the applicants’ complaints under Articles 3, 5 and 8;

-       in the al-Hawsawi case, violation of Article 6 § 1 on account of Lithuania’s cooperation and assistance in the applicant’s transfer from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice, because it was evident that any terrorist suspect would at the time be tried before a military commission which did not offer guarantees of impartiality and independence, was not “established by law” for the purposes of Article 6 § 1 and could use evidence obtained under torture;

-       in the al-Hawsawi case, violations of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention on account of the transfer of the applicant from Lithuania’s territory despite a real risk that he would be subjected to the death penalty.

Status of execution

The Committee of Ministers examined the execution of the Abu Zubaydah judgment most recently at its 1475^th meeting (September 2023) (DH). The examination focused on individual measures, as the Committee had earlier decided to close the question of general measures (CM/Del/Dec(2020)1390/H46-15). The Lithuanian authorities submitted new information on the remaining questions in the Abu Zubaydah case on 10 October 2024 (DH-DD(2024)1142). On 14 October 2024 they submitted an action plan in respect of the recent al-Hawsawi judgment (DH-DD(2024)1167).

At its 1492^nd meeting (March 2024) (DH), the Committee decided to postpone consideration of the
Abu Zubaydah case and the other similar cases against Poland and Romania from the 1501^st meeting (June 2024) (DH) to the present meeting (CM/Del/Dec(2024)1492/A2).

1. Urgent individual measures: request for diplomatic assurances from the US authorities

1)     The applicants’ situation

The applicant in the Abu Zubaydah case is the same as in the case of Husayn (Abu Zubaydah) v. Poland under examination by the Committee in the Al Nashiri v. Poland group of cases. Both Mr Abu Zubaydah and Mr al-Hawsawi are still detained in the Internment Facility at the US Guantánamo Bay Naval Base.

- Detention of MrAbu Zubaydah and related proceedings: The applicant has remained in “indefinite detention” since 2002, for more than 22 years: he has not been charged nor listed for trial before a military commission. He is eligible for review by the Periodic Review Board,^[2] as to whether his detention remains necessary on grounds of his continuing significant threat to the security of the United States: full review every three years and file reviews every six months. At the most recent determination by the Board on 26 June 2023 following a full review, it was decided that the applicant’s detention remained necessary.^[3] The hearing within the subsequent full review took place on 27 June 2024, the date of the final determination having not yet been set. United Nations (“UN”) expert bodies and civil society consider that this mechanism lacks basic procedural safeguards and is ineffective.

Habeas corpus proceedings, lodged with the US District Court for the District of Columbia, have been pending since 2008, without being decided; there are apparently discovery matters that are currently under examination. A new motion seeking his immediate release was filed in November 2021 with the same court, and was denied in October 2022, as the court found that the US authority to detain individuals under the laws of war was not limited to the conflict in Afghanistan. The applicant filed in addition a claim under the Alien Tort Statute with the US District Court in the Eastern District of Washington, which was dismissed on 27 February 2024 for lack of jurisdiction, and an appeal is now pending.

- Proceedings concerning Mr al-Hawsawi before the military commission and US courts: Proceedings before a military commission, initiated in 2008, are still pending at pre-trial stage, in which Mr al-Hawsawi was charged on several counts, together with four other individuals, for his alleged role in planning the attacks on 9/11, and in which he is at risk of the death penalty. The proceedings are currently focusing on pre-trial motions and collection of discovery.

In August 2024, a plea deal, reached between the Guantánamo Military Commission prosecutors and Mr al-Hawsawi and two other defendants, based on which any possibility of the imposition of the death penalty would be withdrawn in exchange for a guilty plea, was later withdrawn by the US Secretary of Defence on the grounds that, due to the significance of such a decision, responsibility for it should rest with the latter body as the superior authority.

Three sets of habeas corpus proceedings were brought by the applicant in the US federal courts, which were dismissed. The most recent case was dismissed on 12 March 2024. An appeal is apparently pending.

- Requests for diplomatic assurances in relation to the applicants’ situation: The Court indicated in the Abu Zubaydah judgment under Article 46 that Lithuania should attempt to make representations to the US authorities with a viewto removing or, at the very least seeking to limit, as far as possible, the effects of the Convention violations suffered by the applicant.^[4] The Court gave similar indications in the recent
al-Hawsawi judgment in respect of the violations of Article 3 and 5, and indicated, in respect of the compliance with the obligations under Articles 2 and 3 taken together with Article 1 of Protocol No. 6 to the Convention, that it was required from Lithuania to endeavour to remove, as soon as possible, the risk of the death penalty being imposed on the applicant by seeking the respective assurances from the US authorities.

In line with the indications in the Abu Zubaydah judgment and the Committee’s previous calls, the Lithuanian authorities have made so far three requests for diplomatic assurances in respect of Mr Abu Zubaydah. They were all rejected by the US authorities, most recently on 23 November 2021, chiefly on the grounds that the European Convention on Human Rights and the judgments of the Court do not reflect the obligations of the United States under international law.

2)     Last examination by the Committee of Ministers (September 2023)

In September 2023, stressing that Mr Abu Zubaydah’s situation raises urgent humanitarian concerns, the Committee welcomed the consultations held, most notably by the Deputy Minister of Foreign Affairs of Lithuania, with counterparts in the US Department of State, to discuss the applicant’s situation and avenues for cooperation in the context of the implementation of the judgment. It also noted with interest that Lithuania had obtained information on the applicant’s situation. It urged the Lithuanian authorities to follow up on these initiatives and intensify their diplomatic efforts, including by raising the issue at a higher level. It moreover invited them to inform it of their assessment whether, given Mr Abu Zubaydah’s current situation, as it emerged from the findings of UN expert bodies, they deemed it necessary or advisable to change the focus of the representations they had made so far to the US authorities.

 

3)      Developments since the Committee’s last examination

- Further bilateral consultations and dialogue with the US authorities: In their October 2024 submission, the Lithuanian authorities indicated that the bilateral consultations with the US authorities, which took place in 2022-2023,[5] have continued also in 2024. In April 2024 updated information was requested from the US Department of State, drawing their attention to the last decision of the Committee of Ministers whereby the urgent humanitarian concerns about the situation of Mr Abu Zubaydah had been stressed.

In June 2024 the US authorities provided a reply, submitting that their view remained that both military commissions and federal courts were appropriate avenues for addressing the cases of Guantanamo Bay detainees in a manner compliant with the international and domestic law. They continued to engage with UN bodies and other parties, for example, by responding to inquiries and engaging with the UN Working Group on Arbitrary Detention on those issues. They further reiterated that the United States has legal authority under the law of war to confine the Guantanamo Bay detainees, who could challenge the legality of their detention in US courts through habeas corpus petitions. The US authorities assured that they take very seriously the responsibility to provide for safe and humane treatment of detainees at Guantanamo Bay and indicated that the detainees receive medical care comparable to that provided to the service personnel. Licensed physicians of different specialties and the US Naval Hospital, Guantanamo Bay provide medical care.

- Information provided by the US authorities on the applicants’ situation: In addition to the information provided by the US Department of State in May 2023 on Mr Abu Zubaydah’s situation,[6] more recently in June 2024 the US authorities provided updated information, in reply to Lithuania’s request, concerning both Mr Abu Zubaydah and Mr al-Hawsawi, mainly updates on the proceedings (see above). As concerns
Mr al-Hawsawi, it was additionally stated that for privacy and other reasons, the US authorities could not provide details or results of medical examinations or other health-related data.

- Additional information provided by Lithuania in the al-Hawsawi case: In October 2024, the Lithuanian authorities reported that they had sought clarifications from the US Department of State whether the above-mentioned plea deal in the military commission proceedings in respect of Mr al-Hawsawi was still under consideration and subject to further procedures. The Ministry of Foreign Affairs of Lithuania was moreover carefully analysing the al-Hawsawi judgment and, depending on the information received on possible developments with the plea deal, will decide as to how best to proceed with the request for diplomatic assurances, and about the precise contents thereof.

2. Other individual measures:

1)     Domestic criminal investigation

- Reactivation of the investigation: Following the Court’s judgment in the Abu Zubaydah case, the domestic criminal investigation was reactivated, and its scope was broadened in November 2018 to avoid the risk of prescription of the offences.^[7] That investigation is joined with the investigation concerning Mr al‑Hawsawi.[8]

- Avenues to advance the investigation: The authorities have been focusing their investigative efforts on gathering evidence from foreign jurisdictions, where the main evidentiary material could be found. To overcome the refusal of the US authorities to support their requests for international legal assistance, the Lithuanian authorities have been pursuing so far two main avenues: (i) seeking relevant information from or through proceedings under US jurisdiction and (ii) initiatives to establish international co-operation.^[9]

- Previous examination by the Committee (September 2023): Having noted once more that the investigative efforts continued to be focused on seeking information from foreign jurisdictions, particularly from the United States, the Committee invited the authorities, inter alia, to closely follow the developments in relevant proceedings in the United States and to assess whether any evidence disclosed in them can be of use in their domestic investigation. It also strongly encouraged them to continue to liaise with Mr Abu Zubaydah’s counsels in the United States to determine the most effective courses of action. Moreover, emphasising once again the importance to thoroughly explore every avenue for co-operation with member and non-member States alike and with international institutions or bodies, it invited Lithuania to inform the Committee about any action taken or envisaged in that respect.

- Recent assessment by the European Court of the effectiveness of the investigation: In the recent al-Hawsawi judgment, the Court assessed the domestic investigation also in respect of the period after the delivery of the Abu Zubaydah judgment and found it ineffective, identifying the following shortcomings: (i) no  satisfactory reasons were given as to the lack of tangible progress in the investigation with regard to the knowledge of and complicity in the CIA’s activities by Lithuanian officials, and their acts or omissions; (ii) the authorities remained unspecific as to the details and the dates of the actions taken or the progress achieved, or the action plan for future investigative measures; (iii) the applicant could not obtain information about the investigation because he was  not a party to the proceeding and his victim status has been denied; (iv) no sufficient explanation was provided as to how transparency of the investigation is ensured, while the importance and gravity of the issues required particularly intense public scrutiny. Under Article 46, the Court required that Lithuania take all necessary steps to reactivate and advance the still pending criminal investigation without delay.[10]

- Latest submissions by the authorities: As concerns efforts to gather evidence from foreign jurisdictions, the authorities stated in October 2024, without providing details about specific actions, that they continued their efforts to advance the investigation, but that the possibilities to collect evidence from foreign jurisdictions were very limited.

They indicated further that there had not been any developments regarding Mr Abu Zubaydah’s previous efforts to obtain discovery following the US Supreme Court decision in his case.[11]

As concerns initiatives to establish international co-operation, they indicated that in March 2024, with the assistance of EUROJUST, a coordination meeting was held in Hague between the Lithuanian and Polish prosecuting authorities in charge of the domestic investigations, to share experience in investigating similar cases and best practices for collecting relevant data. It was agreed to meet again to discuss in more detail some questions raised during the meeting.

It was also reported that the Lithuanian prosecution authorities recently confirmed their position not to allow Mr al-Hawsawi’s renewed request to be granted victim status in the domestic investigation, because of the stricter evidentiary standard for obtaining such status and the lack of corroborating evidence in this respect.

2)     Payment of the just satisfaction in the al-Hawsawi case

The just satisfaction awarded by the Court in the al-Hawsawi case has been paid, respectively, on 30 April 2024 to the applicant’s representatives concerning the award of costs, and on 2 July 2024 to the account of the beneficiary designated by the applicant to receive the non-pecuniary damage.

Latest Rule 9 submissions

In a communication of 23 October 2024, Human Rights in Practicereiterated their concerns expressed in previous Rule 9 interventions in the Abu Zubaydah case about the lack of adequate implementation of key aspects of the judgment. They also emphasised that there had been no recognition of responsibility nor apology offered to the applicant, and called for the Committee’s robust ongoing engagement, in view of a growing urgency related to Mr Abu Zubaydah’s medical and psychological needs as a result of his torture and extreme prolonged detention.

As concerns the question of diplomatic assurances, while recognising that there has been some outreach to the US authorities, they maintained that Lithuania had to escalate the level, frequency and means of their diplomatic action. They also called on Lithuania to engage with other member States, the Council of Europe, the European Union and the UN bodies, and to offer to relocate the applicant and to facilitate his release. In addition, the NGO requested the Committee to engage the member States in a coordinated dialogue for a possible collective diplomatic action and to request them to inform it about undertaken actions, so that it could monitor and make public any collective engagement. They further requested the President of the Committee to engage with the US authorities at high level and called for collaboration with other Council of Europe institutions, such as the Commissioner of Human Rights, and beyond. In respect of the domestic investigation, the NGO welcomed the international co-operation efforts pursued with the assistance of EUROJUST but pointed out that no progress had been made with efforts to obtain evidence from the US authorities through mutual assistance processes (for full details, see DH-DD(2024)1309).

In a communication of 15 October 2024, Redress called on the Committee to adopt the most decisive measures possible to reflect the gravity of the violations in the al-Hawsawi judgment. They emphasised the urgent need for Lithuania to effectively seek assurances from the United States to prevent the risk of the death penalty in respect of Mr al-Hawsawi and to mitigate the effects of the violations endured by him. They also requested the Committee to urge Lithuania to seek exclusion of any torture-tainted evidence in the ongoing proceedings against him, improvement of his detention conditions and access to medical care and end of his arbitrary detention. They further deemed the domestic investigation inadequate, and called on the Committee to urge Lithuania to investigate within a reasonable time, submit an updated investigation plan, allow for representation of the applicant as an interested party in the investigation, provide for regular updates on the investigation and ensure sufficient transparency (for full details, see DH-DD(2024)1189).

In a communication of 31 October 2024, Redress supplemented their above submission requesting the Committee to urge the Lithuanian authorities to seek clarification from the United States on the state of the plea deal regarding Mr al-Hawsawi and the reasons for its withdrawal.

They provided a statement from the applicant’s US Military Commission Defence Counsel, which describes the applicant’s current medical condition and difficulties for him to receive medical assistance at the Guantánamo Bay detention facility and free access to his medical records. The counsel maintains that the applicant’s legal proceedings violate domestic due process and prompt trial rights as well as international law, that the process is constantly politically obstructed and that any access to the federal courts to challenge the legality of his detention are extremely limited (for full details, see DH-DD(2024)1275).

Analysis of the Secretariat

1)     Diplomatic assurances from the US authorities and other avenues to seek removing the risks incurred by the applicants

It is welcome that the Lithuanian authorities have continued to explore ways to overcome the US authorities’ negative position towards requests for diplomatic assurances seeking to bring to an end Mr Abu Zubaydah’s continued arbitrary detention and to avert the risk of further inhuman treatment.

To this end, they have continued their bilateral consultations and have successfully maintained dialogue with the US authorities, enquiring about several aspects concerning both Mr Abu Zubaydah and Mr al-Hawsawi, the pending proceedings, conditions of detention and prospects of development, including whether a plea deal in respect of Mr al-Hawsawi to remove the risk of the death penalty is an option.

The Committee may wish to invite the Lithuanian authorities to continue their dialogue with the US authorities in seeking to remove or, at least, mitigate all the risks identified in the judgments, and to keep it informed of the follow-up on their diplomatic action. They should also report on how they intend to seek diplomatic assurances in respect of Mr al-Hawsawi, considering the continuous risk of the death penalty he is facing.

In support of Lithuania’s past and further efforts, the Committee could reiterate once more its strong calls to the US authorities to provide the co-operation sought by the Lithuanian authorities, in keeping with the values and ideas to which the US subscribes as an observer State to the Council of Europe.

2)     Domestic investigation

It is recalled that the Court’s case-law requires that there should be an effective official investigation into allegations of severe ill-treatment and other serious breaches of human rights. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible for agents of the State to abuse the rights of those within their control with virtual impunity.[12]

Moreover, the fight against impunity is a cornerstone of the rule of law, important both as a form of individual justice and as a wider, general measure ensuring non-repetition: the States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system.[13]

According to the practice of the Committee of Ministers in cases such as the present, where the Court has found a violation of the Convention on account of the lack of effective investigations into allegations of torture or inhuman and degrading treatment and punishment, a thorough assessment is called for, carried out by a public prosecutor, of the possibility to reopen the domestic investigation.[14] This assessment should specify which deficiencies identified by the European Court can be rectified, which can no longer be rectified and what means could be employed to overcome the possible obstacles. The Committee’s practice is to request copies of the relevant decisions containing the competent authorities’ assessment or detailed summary of their reasoning and conclusions.

The European Court has reiterated, most recently in the al-Hawsawi judgment, that, having regard to the nature of the procedural violation of Article 3, compliance with the obligation under Article 46 § 1 of the Convention requires that the ongoing domestic investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the relevant circumstances have been elucidated, so as to enable the identification and, where appropriate, punishment of those responsible.^[15]

While finding the criminal investigation carried out by Lithuania in the period after the delivery of the Abu Zubaydah judgment ineffective, the Court continued to consider that there were no insurmountable practical obstacles to carrying out that investigation. It again stressed that securing proper accountability was conducive to maintaining confidence in the adherence to the rule of law.[16]

It is positive in this context that, in reply to the Committee’s previous calls about exploring every avenue for international co-operation, the Lithuanian prosecuting authorities have sought assistance from EUROJUST, which enabled a coordination meeting with their Polish counterparts to take place, with an agreement for a follow-up meeting. The Committee may wish to welcome this initiative and invite the authorities to follow up on it, as well as to keep it informed of any developments in their efforts to seek avenues of international
co-operation to advance with the investigation, including possible co-operation with other jurisdictions.[17]

That said, it does not appear that any tangible progress has been made with their efforts to gather evidence from US proceedings and to seek to identify effective courses of action with Mr Abu Zubaydah’s counsels in the US. The Committee could therefore reiterate its invitations to Lithuania in this respect.

Moreover, the authorities should clarify without delay how they intend to address the shortcomings identified by the Court in the al-Hawsawi judgment in respect of the ongoing criminal investigation, to ensure its thoroughness, promptness, openness to public scrutiny and accessibility to the victims. More specifically, they could be invited to present a concrete plan, with time frame, of future investigative measures and type of evidence to be gathered, including as concerns any investigative actions regarding the possible knowledge, complicity in the CIA’s activities, conduct and actions or omissions of Lithuanian officials, as well as to clarify how they intend to ensure access of the applicants to information about the investigation and to provide sufficient details on how transparency of the investigation is ensured.

Financing assured: YES