Extraordinary rendition gets to Strasbourg – a right to the truth

31 December 2012 by David Hart KC

El-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment

In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity. 

The facts

So now to the story, taken almost verbatim from the judgment, and not for the faint-hearted. On 31 December 2003 the applicant boarded a bus in Ulm, Germany, with a view to visiting Skopje. When he arrived  at the Serbian/Macedonian border, suspicion arose as to the validity of his recently issued German passport. A border official questioned about possible ties with several Islamic organisations and groups.  Accompanied by men in civilian clothes who were armed, he was driven to a hotel in Skopje.  He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened with being shot.

After seven days of confinement, another official arrived and offered him a deal, namely that he would be sent back to Germany in return for a confession that he was a member of Al-Qaeda. On day 13, the applicant commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the remaining ten days of his detention in FYROM. A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany.

On 23 January 2004, the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany. Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport.

He was told that he would be taken into a room for a medical examination before being transferred to Germany. Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.  According to the applicant, a suppository was forcibly administered on that occasion. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles.

The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. The aircraft was surrounded by armed Macedonian security guards. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. An anaesthetic was also administered over his nose. He was mostly unconscious during the flight.

Upon landing, the applicant disembarked. He deduced later that he was in Afghanistan and that he had been flown via Baghdad.

After landing in Afghanistan, the applicant was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow.

Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the “Salt Pit”, a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects. During his confinement, he was interrogated on three or four occasions, each time by the same man, who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German Government were ignored.

In March 2004 the applicant, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charge. As a consequence of the conditions of his confinement and his hunger strike, the applicant’s health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested it on several occasions.

On 10 April 2004, the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it.

Following his force-feeding, the applicant became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days.

On 16 May 2004 the applicant was visited by a German speaker who identified himself only as “Sam”. The latter visited the applicant three more times prior to his release. On 21 May 2004 the applicant began a second hunger strike.

On 28 May 2004 the applicant, blindfolded and handcuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje. He was told to change back into the clothes he had worn upon his arrival in FYROM and was given two new T-shirts, one of which he put on. He was then taken to the waiting aircraft, wearing a blindfold and earmuffs, and was chained to his seat there. “Sam” accompanied him on the aircraft. He said that the plane would land in a European country other than Germany, but that the applicant would eventually continue on to Germany.

When the aircraft landed, the applicant, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia. The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed the applicant’s long hair and long beard and told him that he looked like a terrorist. He was then driven to the airport in Tirana. He was guided through customs and immigration control and put on a plane to Frankfurt, Germany.

On 29 May 2004. the applicant arrived at Frankfurt International Airport. He was about eighteen kilograms lighter than when he had left Germany.

The judgment

The Court found the above account proved. FYROM denied the whole account from start to finish, but their case was not helped by a statement to the Court from the Macedonian Minister of the Interior at the time in which he admitted the detention pending arrival of CIA agents. He said he was told by the US that there was a legitimate warrant, and confirmed that the whole operation was thoroughly documented by his Ministry (oddly, none of these documents were forthcoming from FYROM in court). As the Minister noted

I understand that Mr El-Masri’s situation resulted from a mistake. I maintain that if any mistake was made in Mr El-Masri’s case, it was not Macedonia’s mistake, and I do not believe there was any intentional wrongdoing on the part of the Macedonian authorities.

Out of time?

The applicant only applied to Strasbourg in July 2009. These events took place in 2004. So FYROM argued that the claim was out of time – way beyond the 6 month limit.

The Court disagreed. In a helpful summary of the law at [134]-[136], they said this

The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. ……As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of such acts or their effect on or prejudice to the applicant….Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances.

See also a good post here for a bit more on this topic.

So applying the law, the applicant in fact lodged a criminal complaint against FYROM in 2008, which was investigated perfunctorily. The Court held that it was reasonable for the applicant to have pursued this remedy, and that the period between 2004 and the complaint in 2008 was reasonable given the complexity of the case. The prosecutor in fact decided against pursuing the complaint in December 2008, though this was not communicated to the applicant until after he had gone to Strasbourg. Hence the claim was in time.

The merits – and the right to truth

Unsurprisingly, given the facts as found, the Court decided that there were breaches of Articles 3 (torture), 5 (unlawful detention), 8 (private life), and 13 (right to an effective remedy). These included breaches in respect of the period when the applicant was in Afghanistan in the hands of the CIA, on the basis [239] that

it should have been clear to the Macedonian authorities that, having been handed over into the custody of the US authorities, the applicant faced a real risk of a flagrant violation of his rights under Article 5. In this connection the Court reiterates that Article 5 of the Convention lays down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction

And the breaches of Articles 3 and 5 included failures to carry out an effective investigation of these allegations. The majority of the Court explained the importance of this in the context of Article 3 at [191]ff.

….the Court also wishes to address another aspect of the inadequate character of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened…..

The Court considers that the prosecuting authorities of the respondent State, after having been alerted to the applicant’s allegations, should have endeavoured to undertake an adequate investigation in order to prevent any appearance of impunity in respect of certain acts……..

As the Council of Europe stated in its Guidelines of 30 March 2011 on eradicating impunity for serious human rights violations,….“impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system”. The inadequate investigation in the present case deprived the applicant of being informed of what had happened, including of getting an accurate account of the suffering he had allegedly endured and the role of those responsible for his alleged ordeal.

4 judges (Judges Tulkens et al) wanted to go further than this. They thought that the right to truth should also be located in the right to an effective remedy under Article 13 – as they explained:

The scale and seriousness of the human rights violations at issue, committed in the context of the secret detentions and renditions system, together with the widespread impunity observed in multiple jurisdictions in respect of such practices, give real substance to the right to an effective remedy enshrined in Article 13, which includes a right of access to relevant information about alleged violations, both for the persons concerned and for the general public.

The right to the truth is not a novel concept in our case-law, and nor is it a new right. Indeed, it is broadly implicit in other provisions of the Convention, in particular the procedural aspect of Articles 2 and 3, which guarantee the right to an investigation involving the applicant and subject to public scrutiny.

In practice, the search for the truth is the objective purpose of the obligation to carry out an investigation and the raison d’être of the related quality requirements (transparency, diligence, independence, access, disclosure of results and scrutiny). For society in general, the desire to ascertain the truth plays a part in strengthening confidence in public institutions and hence the rule of law. For those concerned – the victims’ families and close friends – establishing the true facts and securing an acknowledgment of serious breaches of human rights and humanitarian law constitute forms of redress that are just as important as compensation, and sometimes even more so. Ultimately, the wall of silence and the cloak of secrecy prevent these people from making any sense of what they have experienced and are the greatest obstacles to their recovery.

But 3 judges thought that the Court had gone too far in articulating such a right to truth

Therefore, as far as the right to the truth is concerned, it is the victim, and not the general public, who is entitled to this right as resulting from Article 3 of the Convention, in the light of the Court’s case-law.

All interesting stuff. The Court could simply have made findings of breach against FYROM without underlining the wider policy implications of the duty to investigate.

Just satisfaction

The Strasbourg Court is often seen as not generous when it comes to awarding damages for human rights breaches. It is thus a mark of the Court’s disapproval of FYROM, having “regard to the extreme seriousness of the violations of the Convention of which the applicant was a victim”, that it awarded the applicant 60,000 euros.

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