In its first judgment concerning the human rights of current Guantánamo detainees, the European Court of Human Rights (ECtHR) found that Poland failed to uphold its international obligations by allowing the secret detention, torture, and extraordinary rendition of a Saudi Arabian national and a stateless Palestinian, both suspected of terrorist acts. See ECtHR, Al Nashiri v. Poland, no. 28761/11, Judgment of 24 July 2014; ECtHR, Husayn (Abu Zubaydah) v. Poland, no. 7511/13, Judgment of 24 July 2014. In both cases, the Court found Poland had violated the applicants’ rights under the European Convention on Human Rights by: enabling the United States to secretly detain and torture the applicants on Polish soil, conducting an inadequate investigation into the acts of torture and ill treatment committed in Poland, and allowing the applicants’ transfer to Guantánamo despite the real risk they would be tortured and could be subjected to unfair trials and the death penalty by the United States. The Court held that these failures constituted violations of the applicants’ rights to humane treatment, liberty and security, respect for private and family life, an effective remedy, and a fair trial. The tribunal also held that Poland had failed to comply with its Article 38 obligation to cooperate with the European Court’s investigation in the cases.
Related “War on Terror” Litigation
The Al Nashiri and Abu Zubaydah cases were discussed in a previous post, identifying the status of the handful of complaints brought before regional and universal human rights bodies concerning the secret detention and extraordinary rendition of terrorism suspects.
The Court’s holding in these Polish cases echoes the Grand Chamber’s 2011 judgment in a similar case involving a German citizen’s detention and ill treatment in Macedonia, prior to his extraordinary rendition and detention at a secret U.S. “black site” in Afghanistan. See ECtHR, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012, Judgment of 13 December 2012.
The European Court never reached the merits of the only other applications to be brought by Guantánamo detainees, declaring the complaints “manifestly ill-founded” because it found the government of Bosnia and Herzegovina was doing all it could be expected to do to advocate for the applicants’ proper treatment at Guantánamo. See ECtHR, Boumediene and Others v. Bosnia and Herzegovina (dec.), nos. 38703/06, 40123/06, 43301/06, 43302/06, 2131/07 and 2141/07, 18 November 2008, para. 67. The decision did not concern Bosnia and Herzegovina’s responsibility for the applicants’ detention and transfer, which occurred prior to the European Convention’s entry into force there.
Additional applications pending before the European Court concern other Council of Europe Member States’ role in allowing or facilitating the secret detention and rendition of “war on terror” detainees. See ECtHR, Nasr and Ghali v. Italy, no. 44883/09, Communicated on 22 November 2011 (French only); ECtHR, Abu Zubaydah v. Lithuania, no. 46454/11, Communicated on 14 December 2012; ECtHR, Al Nashiri v. Romania, no. 33234/12, Communicated on 18 September 2012.
Terrorism detainees have also brought complaints before other regional human rights bodies. These include the al-Asad v. Djibouti communication pending before the African Commission on Human and Peoples’ Rights, as well as petitions submitted to the Inter-American Commission on Human Rights by several former detainees, by former Guantánamo detainee Djamel Ameziane, and by Khaled El-Masri. For additional information on these and other cases, see this previous post.
The Court’s Judgment Concerning Al Nashiri & Husayn
Mr. Al Nashiri and Mr. Husayn both alleged that while in U.S. custody, they were held incommunicado at a U.S. Central Intelligence Agency (CIA) black site in Poland for six and nine months, respectively, before being transferred to the Guantánamo Bay detention facility.
Their claims before the European Court of human rights concerned three primary issues:
- The applicants’ torture, ill treatment, and incommunicado detention by the CIA in Poland
- The applicants’ transfer from Poland to Guantánamo
- Poland’s investigation into the applicants’ treatment on its soil
In both cases, the Court found that the applicants’ treatment in detention violated the prohibition on torture and inhuman and degrading treatment (Article 3) in both its procedural and substantive aspects. With regard to the procedural aspect, the Court found that the State failed to conduct “prompt,” “thorough,” and “effective” investigations, as required when individuals allege that State officials were involved with torture or other ill treatment. Al Nashiri v. Poland, paras. 487-99; Husayn (Abu Zubaydah) v. Poland, paras. 481-93.
With regard to the substantive violation of Article 3, the Court held that applicants’ treatment while detained in Poland amounted to torture. Although Polish officials may not have been aware of the actual treatment of the prisoners, the State has an obligation to ensure that individuals within its jurisdiction are not subject to torture or other inhuman and degrading treatment. In these cases, Poland facilitated the detention of the applicants and made no efforts to prevent their ill treatment.
Additionally, Poland contravened Article 3 by allowing the applicants’ transfer by means of extraordinary rendition from Poland to other detention facilities where they faced a foreseeable risk of torture or other ill treatment. Al Nashiri v. Poland, paras. 507-19; Husayn (Abu Zubaydah) v. Poland, paras. 499-514.
With regard to the State’s violation of the applicants’ right to liberty and security of persons (Article 5), the Court echoed its conclusions regarding Article 3. Al Nashiri v. Poland, paras. 530-32; Husayn (Abu Zubaydah) v. Poland, paras. 524-26.
Relying on the conclusions drawn in regard to Article 3 and Article 5, the Court also found that the State’s actions resulted in a violation of the applicants’ right to private and family life (Article 8). The Court held, “In view of the circumstances in which it occurred, the interference with the applicant’s right to respect for his private and family life must be regarded as not ‘in accordance with the law’ and as inherently lacking any conceivable justification under paragraph 2 of that Article.” Al Nashiri v. Poland, paras. 538-40; Husayn (Abu Zubaydah) v. Poland, paras. 532-34.
Having found violations of articles 3, 5, and 8 in both cases, the Court also found that the applicants were unable to avail themselves of effective remedies in Poland, in violation of Article 13 of the Convention. Al Nashiri v. Poland, paras. 546-51; Husayn (Abu Zubaydah) v. Poland, paras. 540-45.
Furthermore, the Court found that the applicants’ transfer to Guantánamo where they would face a trial before a military commission whose procedures did not meet the standards of a “fair trial” violated the right to a fair trial (Article 6.1). The Court determined that Poland was aware of “a real and foreseeable risk” that that the applicants could face “a flagrant denial of justice.” Al Nashiri v. Poland, paras. 562-69; Husayn (Abu Zubaydah) v. Poland, para. 565-69.
In Mr. Al Nashiri’s case, the Court also determined that Poland violated Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 by allowing a transfer that exposed the applicant to a “substantial and foreseeable risk that he could be subjected to the death penalty following his trial before the military commission.” Al Nashiri v. Poland, paras. 576-79.
Acknowledging the serious nature of the wrongs both Mr. Al Nashiri and Mr. Husayn suffered, the Court awarded each applicant €100,000 for non-pecuniary damages. The Court also awarded Mr. Husayn €30,000 for costs and expenses. Al Nashiri v. Poland, paras. 591-595; Husayn (Abu Zubaydah) v. Poland, paras. 563-71. Additionally, in Mr. Al Nashiri’s case, the Court required Poland to seek assurances from the U.S. government that they would not apply the death penalty. Al Nashiri v. Poland, para. 589.
Both Mr. Al Nashiri and Mr. Husayn have pending applications before the Court concerning their detention and treatment at other detention sites in Romania and Lithuania, respectively. The cases have both been communicated to the relevant States and concern the same issues addressed in the decisions discussed above. See ECtHR, Al Nashiri v. Romania, no. 33234/12, Communicated on 18 September 2012; ECtHR, Abu Zubaydah v. Lithuania, no. 46454/11, Communicated on 14 December 2012.
For additional information on similar cases, see: these two previous posts; the factsheet produced by the Office of the UN High Commissioner for Human Rights on Human Rights, Terrorism and Counter-terrorism; the ECtHR’s factsheets on Terrorism, Secret Detention Sites, and Extra-territorial Jurisdiction of ECHR Member States; and the Inter-American Commission’s Report on Terrorism and Human Rights.
The European Court of Human Rights is a regional human rights tribunal with jurisdiction over the 47 Council of Europe Member States. For additional information on its mandate, composition, and procedures, visit the Online Resource Hub.