{"id":22662,"date":"2023-08-20T21:47:56","date_gmt":"2023-08-20T21:47:56","guid":{"rendered":"https:\/\/legalblog.ie\/?p=22662"},"modified":"2023-08-27T16:21:29","modified_gmt":"2023-08-27T16:21:29","slug":"secret-detention","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/secret-detention\/","title":{"rendered":"Secret Detention [ECHR]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/secret-detention\/#State_Accountability\" title=\"State Accountability\">State Accountability<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/secret-detention\/#Assisting_Special_Rendition\" title=\"Assisting Special Rendition\">Assisting Special Rendition<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/secret-detention\/#Rendition_Alleged_Torture\" title=\"Rendition &amp; Alleged Torture\">Rendition &amp; Alleged Torture<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/secret-detention\/#Hosted_Site\" title=\"Hosted Site\">Hosted Site<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/secret-detention\/#Capital_Charges\" title=\"Capital Charges\">Capital Charges<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"State_Accountability\"><\/span>State Accountability<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Varnava v. Turkey, the court indicated that where a person has been, appeared to have been taken into custody and was subsequently disappeared, the State had an obligation to effectively investigate the circumstances.<\/p>\n<p>The court has emphasised the obligation of the authorities to exercise their powers to control and prevent crime in a manner which fully respects due process and other guarantees which legitimately place restraints on the scope of their activities, including the guarantees in Article 5 (Jendrowski v Germany).<\/p>\n<p>Unacknowledged deprivations of liberty and the failures of a state to account for the whereabouts of persons in their custody may comprise serious breaches of the Convention. The person should be formally identified, and information retained on their location, date and duration of detention.<\/p>\n<p>\u201cThe unacknowledged detention of an individual is a complete negation of these guarantees and is the gravest violation of Article 5 . . . States must take effective measures to safeguard against the risk of disappearance and conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Assisting_Special_Rendition\"><\/span>Assisting Special Rendition<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>El-Masri v. \u201cThe former Yugoslav Republic of Macedonia\u201d concerned the complaints of a German national of Lebanese origin that he had been a victim of a secret \u201crendition\u201d operation during which he was arrested, held in isolation, questioned and ill-treated in a Skopje hotel for 23 days, then transferred to CIA (Central Intelligence Agency) agents who brought him to a secret detention facility in Afghanistan, where he was further ill-treated for over four months.<br \/>\nThe European Court of Human Rights found the applicant\u2019s account to be established beyond reasonable doubt and held that \u201cThe former Yugoslav Republic of Macedonia\u201d had been responsible for his torture and ill-treatment both in the country itself and after his transfer to the United States authorities in the context of an extra- judicial \u201crendition\u201d.<\/p>\n<p>The Court held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights, on account of the inhuman and degrading treatment to which the applicant had been subjected while being held in a hotel in Skopje, on account of his treatment at Skopje Airport, which amounted to torture, and on account of his transfer into the custody of the United States authorities, thus exposing him to the risk of further treatment contrary to Article 3. The Court also found a violation of Article 3 on account of the failure of \u201cThe former Yugoslav Republic of Macedonia\u201d to carry out an effective investigation into the applicant\u2019s allegations of ill-treatment.<\/p>\n<p>The Court further held that there had been a violation of Article 5 (right to liberty and security) of the Convention, on account of the applicant\u2019s detention in the hotel in Skopje for 23 days and of his subsequent captivity in Afghanistan, as well as on account of the failure to carry out an effective investigation into his allegations of arbitrary detention. Lastly, the Court found a violation of Article 8 (right to respect for private and family life) and a violation of Article 13 (right to an effective remedy) of the Convention.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Rendition_Alleged_Torture\"><\/span>Rendition &amp; Alleged Torture<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland concerned allegations of torture, ill-treatment and secret detention of two men suspected of terrorist acts. Both applicants submitted that they had been held at a CIA \u201cblack site\u201d in Poland. They maintained in particular that Poland had knowingly and intentionally enabled the CIA to hold them in secret detention in the Stare Kiejkuty facility, for six and nine months, respectively, without any legal basis or review and without any contact with their families. They complained that Poland had knowingly and intentionally enabled their transfer from Polish territory despite the real risk of further ill-treatment and incommunicado detention, allowing them to be transferred to a jurisdiction where they would be denied a fair trial. Finally, they complained that Poland had failed to conduct an effective investigation into the circumstances surrounding their ill-treatment, detention and transfer from the Polish territory.<\/p>\n<p>Having regard to the evidence before it, the Court came to the conclusion that the applicants\u2019 allegations that they had been detained in Poland were sufficiently convincing. The Court found that Poland had cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory and it ought to have known that by enabling the CIA to detain the applicants on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.<\/p>\n<p>In both cases, the Court held that Poland had failed to comply with its obligation under Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation) of the Convention. It further held, in both cases, that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects, a violation of Article 5 (right to liberty and security), a violation of Article 8 (right to respect for private and family life), a violation of Article 13 (right to an effective remedy) and a violation of Article 6 \u00a7 1 (right to a fair trial) of the Convention. As regards the first applicant, the Court lastly held that there had been a violation of Articles 2 (right to life) and 3 taken together with Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Hosted_Site\"><\/span>Hosted Site<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Abu Zubaydah v. Lithuania 2018 This case concerned the applicant\u2019s allegations that Lithuania had let the United States Central Intelligence Agency (CIA) transport him onto its territory under the secret extraordinary rendition programme and had allowed him to be subjected to ill-treatment\u00a0and arbitrary detention in a CIA detention \u201cblack site\u201d. He also complained that Lithuania had failed to carry out an effective investigation into his allegations.<\/p>\n<p>In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate Committee report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant\u2019s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Government\u2019s failure to effectively investigate his allegations and because of its complicity in the CIA\u2019s actions that had led to ill-treatment, as well as violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Article 3.<\/p>\n<p>The Court noted in particular that Lithuania had hosted a secret CIA prison between February 2005 and March 2006, that the applicant had been detained there, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Lithuania had also permitted him to be moved to another CIA detention site in Afghanistan, exposing him to further ill-treatment. The Court therefore that the applicant had been within Lithuania\u2019s jurisdiction and that the country had been responsible for the violations of his rights under the Convention. The Court further recommended that Lithuania conclude a full investigation of the applicant\u2019s case as quickly as possible and, if necessary, punish any officials responsible. It lastly held that the country also had to make further representations to the United States to remove or limit the effects of the violations of his rights.]<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Capital_Charges\"><\/span>Capital Charges<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Al Nashiri v. Romania The applicant in this case was facing capital charges in the US for his alleged role in terrorist attacks. The case concerned his allegations that Romania had let the United States Central Intelligence Agency (CIA) transport him under the secret extraordinary rendition programme onto its territory and had allowed him to be subjected to ill- treatment and arbitrary detention in a CIA detention \u201cblack site\u201d. He also complained that Romania had failed to carry out an effective investigation into his allegations.<\/p>\n<p>In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant\u2019s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Romanian Government\u2019s failure to effectively investigate the applicant\u2019s allegations and because of its complicity in the CIA\u2019s actions that had led to ill-treatment.<\/p>\n<p>The Court also held that there had been violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Articles 3, 5 and 8. Lastly, it held that there had been violations of Article 6 \u00a7 1 (right to a fair trial within a reasonable time) of the Convention, and Articles 2 (right to life) and 3 of the Convention taken together with Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention because Romania had assisted in the applicant\u2019s transfer from its territory in spite of a real risk that he could face a flagrant denial of justice and the death penalty.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-22662\" data-postid=\"22662\" class=\"themify_builder_content themify_builder_content-22662 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>State Accountability In Varnava v. Turkey, the court indicated that where a person has been, appeared to have been taken into custody and was subsequently disappeared, the State had an obligation to effectively investigate the circumstances. The court has emphasised the obligation of the authorities to exercise their powers to control and prevent crime in [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[344],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22662"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=22662"}],"version-history":[{"count":3,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22662\/revisions"}],"predecessor-version":[{"id":23569,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22662\/revisions\/23569"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=22662"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=22662"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=22662"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}