Case of Al-Hawsawi v. Lithuania (Application no. 6383/17)

A selection of key paragraphs can be found below the judgment.

188. The investigation in the applicant’s case, which has been pending since 13 February 2014, has so far lasted nearly ten years.

194. In that regard, the Court would underline that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Violet on Lithuanian territory is conducive to maintaining confidence in the adherence of the Lithuanian State’s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what happened at the material time. A victim who has made a credible allegation of being subjected to ill– treatment in breach of Article 3 of the Convention has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 186 above; see also Association “21 December 1989” and Others v. Romania, nos. 33810/07and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; Husayn (Abu Zubaydah), cited above, § 487; and Abu Zubaydah, cited above, § 620).

195. Lastly, as regards the transparency of the investigation, the Court notes that the Government maintained that access of the public to information had been ensured by the Prosecutor General Office’s public relations unit, but without explaining how this has been done.

It is to be reiterated that the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Lithuanian public have a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained with respect to the investigation (see Al Nashiri v. Poland, cited above, § 497, and Husayn (Abu Zubaydah), cited above, § 489).

196. Having regard to the above deficiencies of the impugned proceedings, the Court considers that Lithuania has failed to comply with the requirements of an “effective and thorough” investigation for the purposes of Article 3 of the Convention. There has accordingly been a violation of Article 3 of the Convention, in its procedural aspect.

217. Furthermore, the Lithuanian authorities wereaware that the transfer of the applicant to and from their territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see El-Masri, cited above, § 221; Al Nashiri v. Poland, cited above, § 518; and Husayn (Abu Zubaydah), cited above, § 513).

In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraph 160 above). Consequently, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see Abu Zubaydah, cited above, § 643).

218. There has accordingly been a violation of Article 3 of the Convention, also in its substantive aspect.

229. In respect of the applicant’s complaint under the substantive aspect of Article 3, the Court has already found that the Lithuanian authorities were aware that he had been transferred from their territory by means of “extraordinary rendition” and that by enabling the CIA to transfer him to its other secret detention facilities, they exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraphs 217-218 above). These conclusions are likewise valid in the context of the applicant’s complaint under Article 5. In consequence, Lithuania’s responsibility under the Convention is engaged in respect of both the applicant’s secret detention on its territory and his transfer from Lithuania to another CIA detention site.

230. There has accordingly been a violation of Article 5 of the Convention.

250. Having regard to the fact that the applicant was transferred out of Lithuania on 26 March 2006 when the same rules governing the procedure before the military commission applied (see paragraphs 29-33 above), the same considerations are valid in the present case. As in Al Nashiri v. Poland (cited above, § 568) and Al Nashiri v. Romania (cited above, § 721) the Court would also refer to the Resolution of 26 June 2003 of the Parliamentary Assembly of the Council of Europe, expressing “disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amount[ed] to a serious violation of the right to receive a fair trial”. Lithuania, as any other member State of the Council of Europe, must have necessarily been aware of the underlying circumstances that gave rise to the grave concerns stated in the resolution. Also, given the strong, publicly expressed concerns regarding the procedure before the military commission in 2001-2003, it must have been a matter of common knowledge that trials before the commissions did not offer the most basic guarantees required by Article 6 § 1 of the Convention. In view of the foregoing, the Court finds that Lithuania’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 in the US proceedings, engaged its responsibility under Article 6 § 1 of the Convention (see also paragraph 160 above).

251. There has accordingly been a violation of Article 6 § 1 of the Convention.