ECtHR, XX v. Poland, No. 28761/11, 2014 & ECtHR, XX v. Poland, No. 7511/13, 2014
- 2014
- Poland
Topics
Membership in a terrorist organisationLegal bases
European Convention on Human RightsCourts
European Court of Human Rights (ECtHR)Laws
Right to Liberty Right to a fair trial Torture, degrading and inhuman and treatment Right to an effective remedyFacts
Both applicants, XX and XX, have been suspected of terrorist attacks and membership in a terrorist organization (Al Qaeda). Both applicants allege that they were victims of an “extraordinary rendition” by the US Central Intelligence Agency (CIA), that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same “rendition plane”. Both Mr XX and Mr XX note, in support of their submissions, that the circumstances surrounding their extraordinary rendition have been the subject of various reports and investigations, including reports prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011. The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. According to a CIA Report of 2004, Mr XX and Mr XX fell into the category of “High-Value Detainees” (HVD) – terrorist suspects likely to be able to provide information about current terrorist threats against the United States – against whom the “enhanced interrogation techniques” (EITs) were being used, which included the “waterboard technique”, confinement in a box, wall-standing and other stress positions. Mr XX’s and Mr XX’s complaints before the European Court of Human Rights related to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and Poland’s failure to conduct an effective investigation into those events.
Legal grounds
Articles 3, 5, 6 and 13 of the ECHR
Findings
Article 3 The Court found a violation of Article 3 in its procedural aspect. It held that the criminal investigation in Poland had failed to meet the requirements of a “prompt”, “thorough” and “effective” investigation for the purposes of that provision. The Court also found a violation of Article 3 in its substantive aspect. It held that the treatment by the CIA to which the applicants had been subjected to during their detention in Poland had amounted to torture. The Polish State, had to be regarded as responsible for the violation of the applicants’ rights committed on its territory. By enabling the CIA to transfer the applicants to its other secret detention facilities, the Polish authorities exposed them to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3. Article 5 The Court found that its conclusions concerning Article 3 applied in the context of the applicants’ complaint about their undisclosed detention and that Poland’s responsibility had been engaged in respect of their detention on its territory and their transfer from Polish territory. Article 8 The Court found that the interference with the applicants’ right to respect for their private and family life had not been in accordance with the law and lacked any justification. Article 13 The Court found that the criminal investigation by Poland had fallen short of the standards of an “effective investigation”. The applicants had thus been denied the right to an “effective remedy”. Article 6 The Court held that Poland had known that any terrorist suspect would be tried before a military commission in Guantanamo in a procedure which did not meet the standard of a “fair trial”. Accordingly, Poland’s cooperation and assistance in the transfer of the applicants from its territory, despite a real and foreseeable risk that they could face a flagrant denial of justice, had engaged the Polish State’s responsibility under this provision.