MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-28

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-28 Al Nashiri group v. Poland (Application No. 28761/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1195, CM/Del/Dec(2023)1475/H46-23

 

Application	Case	Judgment of	Final on	Indicator for the classification
28761/11	AL NASHIRI	24/07/2014	16/02/2015	Urgent individual measures and complex problem
7511/13	HUSAYN (ABU ZUBAYDAH)	24/07/2014	16/02/2015

Case description

The cases concern the violation of a number of Convention rights arising from the fact that the applicants were victims of a secret “rendition” operation, involving their transfer between various Central Intelligence Agency (CIA) detention facilities, including one located in Afghanistan. The European Court found it established beyond reasonable doubt that the applicants arrived in Poland on board of a CIA rendition aircraft on 5 December 2002 and were detained in a CIA detention facility in Stare Kiejkuty. They were subsequently transferred out of Poland, in June and September 2003, to other CIA detention facilities 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:

-    Failure to comply with Article 38 because the authorities refused to furnish all necessary facilities in the proceedings before the European Court;

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

-    Violation of Article 3 (substantive) on account of the authorities’ complicity in the CIA High-Value Detainee (HVD) programme, which enabled the United States authorities to subject the applicants to torture and ill-treatment on the respondent State’s territory and to transfer the applicants from its territory despite the existence of a real risk that they would be subjected to treatment contrary to Article 3;

-    Violation of Article 5 on account of the applicants’ undisclosed detention on Polish territory and the fact that the Polish authorities enabled the United States authorities to illegally transfer the applicants from its territory, despite the existence of a real risk that they would be subjected to further undisclosed detention;

-    Violation of Article 8 because the interference with the applicants’ private and family life was not in accordance with the law;

-    Violation of Article 13 taken in conjunction with Article 3, and in Abu Zubaydah also in conjunction with Articles 5 and 8, on account of the lack of effective remedies in respect of the applicants’ grievances;

-    Violation of Article 6 § 1 on account of the transfer of the applicants from the respondent State’s territory despite the existence of a real risk they 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 Nashiri case, violation of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 on account of the transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could be subjected to the death penalty.

Status of execution

The Committee of Ministers examined the execution of this judgment most recently at its 1475^th meeting (September 2023) (DH). In response to the decision adopted at that meeting, the authorities submitted updated information on 17 October 2024 (DH-DD(2024)1195).

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

Urgent individual measures: requests for diplomatic assurances from the US authorities

1)            The applicants’ situation

The applicants in these cases are the same as in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania. They are still detained in the Internment Facility at the US Guantánamo Bay Naval Base.

- Proceedings concerning Mr Al Nashiri before the military commission and US courts: Proceedings before a military commission initiated in 2008, in which the applicant is at risk of the death penalty, are still pending at pre-trial stage; focusing on the issue of admissibility of evidence, the latest hearings took place from 21 to 23 August 2024.[1]

At the time of the judgment, the rules governing military commission proceedings continued to permit the introduction of coerced statements under certain circumstances, if “the use of such evidence would otherwise be consistent with the interests of justice”, thereby exposing the applicant to a risk of a flagrant denial of justice (§ 77). It later appeared that such evidence might be deemed admissible at pre-trial stage.

However, in proceedings brought by Mr Al Nashiri before the US Court of Appeals for the District of Columbia Circuit, the US Government conceded, in a brief submitted in January 2022, that the prohibition on admission of statements obtained through torture, or cruel, inhuman or degrading treatment applied to all stages of a military commission case and stated that it would not seek admission, at any stage of the proceedings, of any of Mr Al Nashiri’s statements while he was in CIA custody.^[2] During oral argument, the US Government also indicated that it would not oppose an order by the military commission to identify any further statements obtained by torture in the record. The circuit judge was satisfied with these representations and the US Government’s withdrawal of the evidence identified to have been made under torture and dismissed the applicant’s petition on 2 September 2022.

In parallel proceedings, the military commission judge granted on 30 June 2022 the applicant’s motion to suppress from the file custodial statements made under torture by a third-party witness and reserved the issue of derivative evidence for a later stage, if such evidence was offered at trial.[3]

More recently, the prosecution sought to admit incriminating statements made by Mr Al Nashiri to agents from the Federal Bureau of Investigations (FBI) and the Naval Criminal Investigative Service (NCIS) in early 2007, after his transfer from CIA black sites. On 18 August 2023, the military commission judge decided to supress those statements on the ground that the US Government “has not proven by a preponderance of the evidence that the presumed taint from the prior years of physical and psychological torment was dissipated” when Mr Al Nashiri had made them.

The prosecution appealed this ruling before the Court of Military Commissions Review, where proceedings are pending.[4] At the same time, Mr Al Nashiri’s counsel filed a motion to exclude several pieces of evidence, including statements allegedly made by him from 2006 to 2009. This question is being examined by the military commission judge, who also set the dates for the applicant’s trial (from 6 October to 19 December 2025).[5]

- Detention of Mr Abu Zubaydah and related proceedings: The applicant has remained in “indefinite detention” for more than 20 years: he has not been charged nor listed for trial before a military commission.

Mr Abu Zubaydah is eligible for review by the Periodic Review Board[6] as to whether his detention remains necessary on grounds of continuing significant threat to the security of the US: full review every three years and file reviews every six months. At the last determination by the Board following a full review in June 2023, it was decided that the applicant’s detention remained necessary.[7]  The hearing within the subsequent full review took place on 27 June 2024, the date of the final determination has not yet been set. UN expert bodies and civil society[8] consider that this mechanism lacks basic procedural safeguards and is ineffective.

Habeas corpus proceedings concerning this applicant, lodged with the US District Court for the District of Columbia, have been pending since 2008, without having been decided upon. The applicant in addition filed claims under the Alien Tort Statute in US District Court in the Eastern District of Washington, which was dismissed on 27 February 2024 for the lack of jurisdiction. The applicant appealed and the appeal proceedings are pending.

- Requests for diplomatic assurances in relation to the applicants’ situation: Since the final judgments in these cases, in line with the findings and indications in the Court’s judgments and the Committee’s decisions, the Polish authorities have on a number of occasions (most recently in December 2022, at the high-level meeting between the Minister of Foreign Affairs of Poland and the US Secretary of State) requested from the US authorities diplomatic assurances that Mr Al Nashiri will not be exposed to the risk of the death penalty in the US, and that he and Mr Abu Zubaydah receive guarantees against any flagrant denial of justice. The US authorities replied (most recently at the follow up meeting on 15 May 2023 in Washington) that these requests could not be granted, chiefly because the European Convention on Human Rights and judgments of the Court do not reflect the obligations of the United States under international law.

2)            Last examination by the Committee of Ministers

At the last examination, stressing that the applicants’ situation raises urgent humanitarian concerns, the Committee welcomed the Polish authorities’ high-level efforts to seek diplomatic assurances against the grave risks faced by the applicants, by raising this issue at the meeting between the Minister of Foreign Affairs of Poland and the US Secretary of State and expressed strong support to the further action envisaged by the Polish authorities aimed at seeking to remove the risks identified in the judgments. The Committee moreover invited them to inform it of their assessment whether, given the applicant’s situation, as it emerged from the findings of UN expert bodies, they had 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

In their most recent submission, the Polish authorities declared that they would continue their efforts in good faith to seek diplomatic assurances that the death penalty would not be ruled or carried out with respect to Mr Al Nashiri and to the effect that both applicants, under US jurisdiction, would not be deprived of the right to a fair trial. As regards the reflection on changing the focus of the representations following findings of the UN expert bodies concerning the applicants’ current situation, the authorities expressed the opinion that the assessments and recommendations of these bodies did not create binding international obligations. They added that the Polish Government was engaging with the UN mandates in the relevant proceedings and inquiries independently from any processes within the Council of Europe.

Other individual measures: domestic criminal investigation

1)     Status of the investigation

A criminal investigation into allegations concerning the existence of a CIA secret detention facility in Poland was opened by the Prosecutor’s Office on 11 March 2008.

The Committee closely followed the progress in the investigation and was previously informed that the prosecution had : (i) discontinued it on 30 November 2020 in the part concerning the participation of Polish officials in the deprivation of liberty of identified persons suspected of terrorist activities, due to the lack of required elements of criminal offence and that this decision had been upheld on appeal by a domestic court, in September 2021; (ii) the remaining part of the investigation, concerning deprivation of liberty and implementation of enhanced interrogation techniques by US Officials on the territory of Poland, had been suspended in February 2021, pending the outcome of a new request for legal assistance submitted to the US, and was subsequently resumed.

2)     Last examination by the Committee (September 2023)

At its last examination, the Committee expressed concern that the authorities still had not submitted the decision on the partial discontinuation of the investigation and that the recently provided information had not included elements capable of dispelling the Committee’s concerns about the lack of adequate and sufficient investigative efforts to ensure the maximum possible reparation and strongly urged the authorities once again to provide the requested information. It also urged them again to inform the public, on their own motion, to the extent possible without compromising national security, about the scope of the investigation and reasons for its partial discontinuation.   

3)     Developments since the Committee’s last examination

The authorities submitted to the Secretariat, on a confidential basis, a copy of unclassified part of the decision on partial discontinuation of investigation of 30 November 2020 in Polish. The summary of this decision, for the distribution among delegations, is to be submitted by the authorities.

The remaining part of the investigation, concerning the imposition of the enhanced interrogation techniques on the territory of Poland by US officials, is pending. The authorities maintained that no information about the evidence gathered so far and on any procedural activities could be disclosed. They repeated that the US authorities on numerous occasions had refused to provide international assistance and that capacity of the prosecution service to gather evidence was therefore very limited. The authorities underlined that the representatives of victims had access to all the documents in the open and classified parts of the files.

The authorities maintained their previous position as regards the issue of public scrutiny over the investigation, considering as sufficient in this respect enquiries addressed to the spokesperson of the Kraków Regional Prosecutor’s Office, who provided information to the extent possible.

General measures

In the process of the execution of these judgments, it has been determined that to guarantee non-repetition of the violations, it appeared necessary for the Polish authorities to implement measures to:

      i.        strengthen supervision over the intelligence services, in particular the scrutiny in respect of high-level decision making in this area;

     ii.        ensure unhindered communication with the European Court; and

    iii.        deliver an unequivocal message at high level to the intelligence and security services as to the absolute unacceptability of and zero tolerance towards arbitrary detention, torture and secret rendition operations and provide details about the measures taken or envisaged to acknowledge Poland’s role in and responsibility for the human rights violations that occurred in these cases.

Supervision over the intelligence services

The authorities have submitted over the years extensive information about the existing provisions on and mechanisms for oversight of the activity of the intelligence services, as well as on certain measures (for details, see the Notes for the 1411^th meeting).

At its last examination, the Committee noted that the information provided by the authorities so far had not dispelled concerns prompted by the European Court’s findings that these cases revealed “a more general problem of democratic oversight of intelligence services” and strongly urged them to provide all the clarifications previously sought in this respect, notably on safeguards effectively implemented since the facts of the cases, including regarding parliamentary oversight, to ensure genuine and effective democratic oversight over secret services to prevent similar violations.

In their most recent submission, the authorities reiterated that the current system of control and supervision of the secret services in Poland should be considered effective. The legal framework governing this oversight has been constantly reviewed. For example, legislative proposals are under consideration to: (i) require more detailed information from secret services while requesting authorisation for operational control; and (ii) introduce obligation for courts to provide reasons when such request is allowed.

The authorities concluded that the system of the supervision over secret services had been constantly evolving and is currently much more effective than at time of the facts of these cases.

Unhindered communication with the European Court

On 25 September 2023 the Plenary of the Court adopted an amendment to the Rules of the Court, incorporating the new Rule 44F on treatment of highly sensitive documents, which entered into force on 30 October 2023. The purpose of this Rule is to establish a specific regime for handling of highly sensitive documents, including those which a State Party considers requiring special treatment for reasons of national security. The Rule sets out how the Court will treat specific requests, having them examined by a committee of three judges who are not a part of the Chamber composition which will consider admissibility and merits of the case.

In their most recent submission, the authorities welcomed the adoption of the new Rule 44F and confirmed that they are currently undertaking analysis to assess whether it could be deemed sufficient to ensure the compatibility with the domestic procedures on the treatment of classified information.

Zero-tolerance message and acknowledgement of the Poland’s role in and responsibility for the human rights violations that occurred in these cases

The Committee, in the Interim Resolution CM/ResDH(2022)353, required information about developments in the adoption of other measures necessary to guarantee non-repetition of the violations found, notably an unequivocal message at high level to the intelligence and security services as to the absolute unacceptability of and zero tolerance towards arbitrary detention, torture and secret rendition operations; and acknowledging Poland’s role in and responsibility for the human rights violations that occurred in these cases. At its last examination of these cases, the Committee exhorted the authorities once again to heed without further delay its previous calls in this respect.

In their most recent submission, the authorities underlined that the message on the importance of respecting human rights when carrying out tasks was systematically sent to the special services by high-level decision-makers. According to the authorities, the Council on Secret Services, chaired by the Prime Minister, which includes the Minister-Coordinator of Special Services, the Minister of Foreign Affairs and heads of all secret services, should be considered an appropriate forum for sending a clear signal to the secret services on the fundamental importance of the respect for human rights and the lack of tolerance for their violation.

The authorities confirmed that they would continue searching for the most appropriate format of the zero-tolerance message, which would consider the existing institutional framework and reach the public opinion at large.

Rule 9 submission

In its communication of 23 October 2024 concerning the Abu Zubaydah case, the Human Rights in Practice reiterated the concerns expressed in its previous Rule 9 submissions as to the lack of adequate implementation of key aspects of the judgment. It also emphasised that there had been no recognition of responsibility nor apology offered to the applicant and that the authorities had not indicated any meaningful measures of non-repetition. It therefore 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 diplomatic assurances, while recognising that there has been some outreach to the US authorities, the NGO maintained that Poland had to escalate the level, frequency, and effectiveness of representations to offer to relocate the applicant and to facilitate his release. It also called on the collective engagement with other member States, the Council of Europe, the European Union and the UN bodies. In addition, it requested the Committee to engage the member States in a coordinated dialogue for a possible collective diplomatic action. It 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, including the Commissioner for Human Rights.

As regards domestic investigation, the NGO urged the authorities to release information capable of dispelling the Committee’s concerns about the lack of adequate and sufficient investigative efforts to ensure the maximum possible reparation. It also considered the stark failure to engage with the important findings of the Committee and of the Court regarding general measures a matter of serious concern (for full details, see DH-DD(2024)1309).

The authorities replied to this communication on 31 October 2024, referring to information previously submitted  on 17 October 2024 (see DH-DD(2024)1309).

Analysis of the Secretariat

Individual measures

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

It should be recalled that the Polish authorities, in line with the findings and indications in the Court’s judgments and in the Committee’s decisions, have on a numerous occasions requested from the US authorities diplomatic assurances concerning both applicants and that the US authorities have maintained that these requests could not be granted.

The Polish authorities’ commitment, despite unsuccessful past attempts at the high-level, to continue to seek diplomatic assurances that the death penalty would not be imposed with respect to Mr Al Nashiri and to the effect that both applicants would not be deprived of the right to a fair trial is positive and should be welcomed. The Committee could also invite them to continue their dialogue with the US authorities to seek to remedy, as far as possible, the consequences of the serious human rights violations suffered by the applicants and keep the Committee informed about any developments in this respect.[9]

In support of Poland’s past and further efforts, the Committee could once more reiterate its strong calls to provide the co-operation sought by the Polish authorities, in keeping with the values and ideas to which the United States 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.[10]

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.[11]

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 investigation 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.[12] 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 fact that the Polish authorities finally submitted a copy of the decision of 30 November 2020 partially discontinuing the investigation is positive. It should, however, be underlined that substantial part of this decision is classified, and that the possibility of its full assessment is therefore limited.

The text available to the Secretariat does not allow for a conclusive assessment that all possible means have been deployed to seek toestablish to the domestic standard of proof the facts the Court found established beyond any reasonable doubt (notably the operation of a CIA secret detention facility in Poland, the applicants’ transfer into and from Poland, their secret detention and ill-treatment inflicted on them). The authorities could therefore be invited to provide the Committee with additional clarification whether this decision in its classified part established these elements.

As the reasons for the decision on the partial discontinuation of the investigation in the format available to the Secretariat refer only to non-classified information, the Committee might call on the authorities to reconsider their position and allow for its publication, addressing in this way previous concerns as to the insufficient public scrutiny over the investigation. Once again it could be recalled in this context that the public has a legitimate right to be informed of the investigation and its results, which is instrumental in maintaining the confidence in the adherence of Poland to the rule of law.[13]

As regards the investigation in its pending part, concerning deprivation of liberty and implementation of enhanced interrogation techniques by the US officials on the territory of Poland, the authorities should provide the Committee with more detailed information on any new activities within its course, already undertaken or planned, the type of evidence to be gathered, and a time frame and foreseen completion date.

General measures

1)     Supervision over the intelligence services

The fact that the system of the oversight over the intelligence services is under constant review to find solutions for its amelioration is positive. However, the example of further improvements given by the authorities concerns judicial oversight of the operational control which is not relevant for addressing the underlying problem in these cases.

Even though the authorities regard the irregularities identified by the European Court in the system of the oversight as incidental, they have not explained how they intend to prevent a situation similar to the one that took place in 2005. It should be recalled that the European Court’s findings as to the existence in Poland of “a more general problem of democratic oversight of intelligence services”, were based predominantly on the results of the action of the Parliamentary Committee for Special Services, which in 2005, after a brief inquiry, indicated publicly that there had been no secret CIA detention site in Poland.[14] The authorities should provide explanations about the reasons behind ineffectiveness of this mechanism in the circumstances of these particular cases and information about the measures aiming at non-repetition of similar situation.

2)     Unhindered communication with the European Court

It should be recalled that the Court has adopted a new Rule 44F on the treatment of highly sensitive documents. The Committee may note with interest the authorities’ ongoing analysis on whether the new Rule requires any adjustments in the domestic procedures on the treatment of classified information and insist on its rapid completion.

3)     Zero-tolerance message and acknowledgement of the Poland’s role in and responsibility for the human rights violations that occurred in these cases

The authorities declared that the importance of respecting human rights when carrying out tasks by the special services is systematically underlined by high-level decision-makers, without however presenting any details. They could be invited to provide more detailed information in this respect.

The ongoing reflection on the most appropriate form of the zero-tolerance message appears to be very important as an unequivocal message as to the absolute unacceptability of and a zero tolerance towards arbitrary detention, torture, and secret rendition operations, could also be instrumental in acknowledging Poland’s role and responsibility for the human rights violations that occurred in these cases, which was repeatedly required by the Committee of Ministers. Again, the Committee may note with interest this reflection, emphasising the need for its rapid completion.

Financing assured: YES