MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-30

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-30 Al Nashiri v. Romania (Application No. 33234/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1125, DH-DD(2023)1505, CM/Del/Dec(2023)1475/H46-26

 

Application	Case	Judgment of	Final on	Indicator for the classification
33234/12	AL NASHIRI	31/05/2018	08/10/2018	Urgent individual measures and complex problem

Case description

The case concerns violations of a number of Convention rights arising from an “extraordinary rendition” operation. The Court found it established beyond reasonable doubt that Romania hosted a Central Intelligence Agency (CIA) detention site code-named “Detention Site Black” and that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, 5 November 2005. He was subsequently transferred by the CIA out of Romania to another of its 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:

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

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

-       violation of Article 5 on account of the applicant’s secret detention on Romanian territory and the fact that the Romanian authorities enabled the US authorities to transfer him to other secret detention facilities, despite a foreseeable serious risk that he would be subjected to further secret detention;

-       violation of Article 8 of the Convention because the interference with the applicant’s right to respect for private and family life, which 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 that Article;

-       violation of Article 13 on account of the lack of effective remedies in respect of the applicant’s grievances under Articles 3, 5 and 8;

-       violation of Article 6 § 1 on account of Romania’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;

-       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 the respondent State’s territory despite a substantial and foreseeable 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 15 December 2023 (DH-DD(2023)1505) and 3 October 2024 (DH-DD(2024)1125).

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: request for diplomatic assurances from the US authorities

1)     The applicant’s situation

The applicant in the present case is the same as in the case of Al Nashiri v. Poland. He is detained in the Internment Facility at the Guantánamo Bay Naval Base.^[1] Proceedings initiated against him before a military commission in 2008, in which he is at risk of the death penalty, are still pending at pre-trial stage. The latest hearings took place from 21 to 23 August 2024.^[2]

- Developments in the proceedings before the military commission and US courts: At the time of the Court’s judgment, the rules governing military commission proceedings allowed the introduction of coerced statements 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 (§ 74).

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.^[3] 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.^[4]

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.[5] 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).[6]

- Requests for diplomatic assurances in relation to the applicant’s situation: In line with the findings and indications in the Court’s judgment and the Committee’s decisions, the Romanian authorities have made requests for diplomatic assurances against the flagrant denial of justice and the imposition of the death penalty in the applicant’s trial.

At the time of the Committee’s last examination (September 2023), the first request had been rejected, 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, four others remained unanswered, and a sixth had just been made by the State Secretary of the Ministry for Foreign Affairs of Romania during bilateral consultations with US officials in August 2023. They also reiterated the request for updated information on Mr Al Nashiri’s trial and current conditions of detention. The US side indicated that they would convey these requests to the relevant authorities and that a meeting would be arranged between the Romanian authorities and the US State Department office which deals with the situation of the persons detained at the Guantánamo Internment Facility (see DH-DD(2023)1025).

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

Stressing that Mr Al Nashiri’s situation raises urgent humanitarian concerns, the Committee welcomed the steps taken by the Romanian authorities to renew the requests for assurances that the applicant will not be subjected to the death penalty and their attempt to ascertain the possible consequences of the statements made by the US Government in January 2022, as regards the elimination of the other risk identified by the Court, of a flagrant denial of justice. It also noted with interest the new avenues for further dialogue identified in this context.

The Committee also urged the Romanian authorities to follow up closely on their new action aimed at seeking to remove the risks identified in the judgment and to pursue all possible means to make it effective, including by raising the issue at a higher level. It moreover invited them to inform it of their assessment whether, given the applicant’s current situation, as it emerges from the findings of UN expert bodies, they have deemed it necessary or advisable to change the focus of the representations they have made so far to the US authorities.

3)      Developments since the Committee’s last examination

In their October 2024 submission, the Romanian authorities referred to new bilateral consultations which took place between the State Secretary of the Ministry for Foreign Affairs and US officials on 30 September 2024. The Romanian side renewed the request for diplomatic assurances against the risk of capital punishment and the enquiries whether the risk of a flagrant denial of justice in the applicant’s trial – in relation to the possible use of evidence obtained through torture or other forms of ill-treatment – has now been effectively and practically removed. They also reiterated the request for updated information on
Mr Al Nashiri’s trial and current conditions of detention. Several options are being explored at the moment, in particular arranging a meeting between the Romanian authorities and the State Department office dealing with the situation of persons detained at the Guantánamo Bay Naval Base (see DH-DD(2024)1125).

Other individual measures: domestic criminal investigation

1)     The status of the criminal investigation

In March 2021, the General Prosecutor’s Office (the “GPO”) decided to terminate without charge the investigation opened in 2012 into the circumstances surrounding the applicant’s rendition, secret detention and ill-treatment in Romania, on the main ground that there was no evidence that any person had committed a crime and also that the limitation periods applied to the investigated crimes of torture and unlawful deprivation of liberty had expired at the latest in 2016. The applicant’s representatives challenged this decision before the higher prosecutor, who rejected that challenge; they did not seek further judicial review. The authorities submitted the relevant prosecutorial decision in full.[7]

At previous examinations, the Committee had also been informed of a decision issued by the Preliminary Chamber of the International Criminal Court (“ICC”) on 19 April 2019 and of a judgment adopted by the ICC Appeals Chamber on 5 March 2020, the latter authorising an investigation in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation there and were committed “by members of the CIA on the territory of … other States Parties to the Statute (namely Poland, Romania and Lithuania), primarily in the period 2003-2004”.[8] The Romanian authorities indicated that the prosecution service had also examined these in the framework of the investigation carried out into Mr Al Nashiri’s case.

When it assessed these developments, in September 2021, the Committee deeply regretted that the available information did not permit the conclusion to be drawn that, after the Court’s judgment, all possible means had been deployed to seek to elucidate the relevant circumstances to the degree required to meet the domestic standard of proof. It outlined several shortcomings^[9] and requested the authorities to indicate whether the facts as established by the Court could receive a different legal classification, which would enable them to pursue the investigation in a manner consistent with their obligations under the Convention (CM/Del/Dec(2021)1411/H46-26).

At the March 2022 examination, the Committee was informed that a senior prosecutor from the General Prosecutor’s Office had re-examined the file and concluded that there was no reason to warrant reopening the investigation. The prosecutor also found that the Criminal Code provisions criminalising genocide, crimes against humanity and war crimes, which are not subject to statutory limitation, could not serve as basis to resume the investigation, as the facts did not satisfy key elements of these crimes (such as the existence of a “state of war” and the targeting of a “national, ethnic, racial or religious group”).[10]

The Committee has since underlined the need to thoroughly consider every legal avenue which could allow pursuing the investigation in a Convention-compliant manner and requested the authorities to provide the details of the GPO’s analysis on this point.[11]

2)     Last examination by the Committee (September 2023)

The Committee took note of the information provided by the Romanian authorities in response to its previous decisions but considered that the elements therein were insufficient to dispel its  concerns about the lack of adequate and sufficient investigative efforts after the judgment to ensure the maximum possible reparation for the procedural violation found. Firmly reiterating the need to thoroughly consider every legal avenue which could allow resuming and pursuing the investigation in a Convention-compliant manner, it recalled that according to the authorities’ assessment the only way to achieve this is to reclassify the facts established by the Court as international crimes. The Committee therefore requested the authorities to deepen their analysis on this point, with due regard to Romania’s obligations as a State Party to the ICC Statute and to the determinations of that court relevant to the matter at hand, and to keep it informed.

3)     Developments since the Committee’s last examination

In their December 2023 submissions, the Romanian authorities conveyed the analysis conducted by the General Prosecutor’s Office after the dissemination of the Committee’s last decision. The GPO reiterated its previous conclusions that all the available legal avenues for resuming the criminal investigation into the applicant’s situation have been exhausted. Highlighting the various stages of the investigation, the GPO recalled that the decision to close was not based on classified documents and that reopening would be possible only if new elements were discovered following further declassification of the 2014 US Senate Select Committee on Intelligence’s Executive Summary of the “Study of the Central Intelligence Agency’s Detention and Interrogation Program” (the “2014 US Senate Report”), but only if the investigated offences are not time-barred.

When it comes to the requalification of the crimes investigated as war crimes under common Article 3 of the 1949 Geneva Conventions, the General Prosecutor’s Office concluded that this would not permit reopening of the criminal investigation, since the main legal ground for closure was the absence of indications that a person had committed a crime, the statute of limitations being invoked only in a subsidiary and formal manner (for full details, see DH-DD(2023)1505).

General measures

Following the adoption by Romania of several measures, summarised in the Notes prepared for previous examinations, the Committee has concluded that the only remaining question concerns securing the “right to the truth”. The Committee has thus considered that, in the event it is cogently established that resuming the criminal investigation is not a viable option, it will fall on the authorities to ensure through other means that the circumstances of Romania’s knowledge of and involvement in the implementation of the CIA HVD programme are further elucidated.

Analysis of the Secretariat

 

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

It should be recalled that the Romanian 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 the applicant and that with the exception of the first such request, which was denied, all the others have remained unanswered.

It is further recalled that, more recently, the Romanian authorities have also enquired about the applicant’s conditions of detention and trial, including whether the risk in relation to the possible use of evidence obtained through torture has now been effectively removed. According to their latest submission, they have renewed their previous representations and inquiries and have moreover continued to explore other avenues of dialogue with the US authorities and ways to make effective those already identified.

The Romanian authorities’ continuing diplomatic efforts, despite unsuccessful past attempts, demonstrate their commitment towards seeking to remedy as far as possible the effects of the violations established and should therefore be welcomed. These actions not only heed the Committee’s calls, in view of the urgent humanitarian concerns raised by Mr Al Nashiri’s situation, but also echo the Court’s indications given in another recent similar judgment.[12] The Committee could invite them to continue their dialogue with the US authorities in seeking to remedy, as far as possible, the consequences of the serious human rights violations suffered by Mr Al Nashiri and to keep the Committee informed about any developments in this respect.

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

2.     Investigative measures

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.[13]

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.[14]

According to the practice of the Committee of Ministers in cases where the Court found 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, about the possibility to reopen the domestic investigation.[15] This assessment should specify which deficiencies identified by the European Court could be rectified and which are no longer possible to 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 Committee has further considered in cases of serious human rights violations, including this one, that, in the event it is cogently established that resuming the criminal investigation is not a viable option, it falls on the authorities to ensure through other means that the relevant circumstances are further elucidated and thus to secure the right to the truth.[16] The right to the truth rests on the premise that not solely the victims and their families, but also other victims of similar violations and the general public have a right to know the truth about past human rights violations, as a means of justice and non-repetition.[17]

In response to the Committee’s requests, the Romanian authorities have provided in full the decision of the General Prosecutor’s Office to close the domestic investigation into the offences of torture and unlawful deprivation of liberty, mainly on the ground that the available evidence did not meet the domestic standard of proof under the Criminal Code to attest that a person had committed a crime and, subsidiarily, that the statute of limitation for those offenses had long expired. The GPO then re-examined the possibility to reopen the investigation, but maintained its previous conclusions, emphasising the vast and comprehensive evidentiary material gathered, the lack of direct testimony from the applicant and the United States’ refusal to support Romania’s request for legal assistance, made before the judgment.

In their most recent relevant submission, the authorities also provided the details of the analysis conducted by the General Prosecutor’s Office into the possibility to reclassify the facts established by the European Court as international crimes, which appeared to be the only way to reopen the criminal investigation and correct its deficiencies. The GPO concluded that such a requalification of the facts would be fruitless in the absence of indications that a person has committed a crime and reiterated that all the domestic legal avenues had been exhausted in this case.[18] This outcome is deeply regrettable.

At the same time, it is notable that the Romanian authorities have submitted comprehensive information in relation to their efforts in the course of  the investigation to corroborate the facts as established by the Court and their analysis of the possibility to reopen it once it was closed (see, notably, DH-DD(2023)502). Thus, in addition to a full copy of the closure decision provided to the Secretariat, they included in their submissions summaries of this decision giving a detailed account of the investigative steps taken and a timeline of the evidence collected both before and after the Court’s judgment,[19] such as testimony from high-ranking officials; those showed moreover that during the entire investigation, the applicant was granted victim status[20] and was represented by counsel, who however never requested access to the criminal file.

When it comes to the reopening of the domestic criminal investigation, the authorities provided the details of the analysis conducted by the General Prosecutor’s Office, including the reasons underlying its conclusions according to which resuming the investigation is precluded by the absence of indications that someone committed a crime and that reclassifying the facts as international crimes would not lead to a different result.

The authorities have also indicated clearly that the current obstacles to reopening the investigation and rectifying the deficiencies identified by the Court could only be overcome if new elements were discovered following a decision by the US authorities to declassify further the 2014 US Senate Report and other relevant data. This appears to be in line with the Committee’s practice outlined above.

Against the backdrop of the authorities’ conclusion that resuming the criminal investigation is not feasible, due mainly to the lack of evidence meeting the domestic standard of proof, it is necessary to ensure through other means that the circumstances of Romania’s knowledge and involvement in the implementation of the CIA “High-Value Detainee Programme” are further elucidated. The Committee may therefore wish to invite the authorities to take all necessary steps, through a public inquiry or other appropriate means, aimed at establishing, insofar as possible, what happened and how and thus secure the right to the truth in this case, as a means of justice and non-repetition.

Lastly, the Romanian authorities could be requested to submit information on the above questions by 30 June 2025 at the latest.

Financing assured: YES