Abu Zubaydah v. Lithuania Case Analyses

Abu Zubaydah - Litvanya Dava Analizi

Mustafa Can SATİ

European Court of Human Rights (ECtHR) judgements of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania are the follow-up cases of the Al Nashiri v. Poland and Abu Zubaydah v. Poland. The violation decisions given by the Court in the former cases against CIA’s secret detention facilities are of great importance in the examination of the establishment of CIA within the borders of Europe from the human rights dimension. In this context, the author of this paper analysed the CIA’s detention facilities which became a center of torture and inhuman treatment based on the Abu Zubaydah v. Lithuania judgement and examines the perspective of the Court in the light of aforementioned decisions.

Human Rights, Torture, Inhuman Treatment, Right to Liberty and Security, Right to Respect for Private and Family Life, Right to an Effective Remedy, CIA, ECtHR.

Avrupa İnsan Hakları Mahkemesi (AHİM) daha öncesinde Abu Zubaydah/Polonya ve Al Nashiri/Polanya davalarında CIA’nin gizli gözaltı merkezlerine yönelik vermis olduğu ihlal kararlarının devamı niteliğinde olan Al Nashiri/Romanya ve Abu Zubaydah/Litvanya davalarının CIA’nin Avrupa sınırları içerisindeki yapılanmasının insan hakları boyutundan incelemesinde büyük önem arz etmektedir. Bu bağlamda yazar bu çalışmasında AHİM’in Abu Zubaydah/Litvanya kararından yola çıkarak işkence merkezi haline gelen CIA’nin bu yapılanmalarını analiz etmekte ve ilgili kararlar ışığında mahkemenin perspektifini incelemektedir.

İnsan Hakları, İşkence, İnsanlık Dışı Muamele, Özgürlük ve Güvenlik Hakkı, Özel ve Aile Hayatına Saygı Hakkı, Etkili Başvurma Hakkı, CIA, AHİM.

1. The Facts

The applicant, Mr Zayn Al-Abidin Muhammad Husayn also known as Abu Zubaydah who is a stateless Palestinian lodged an application to the Republic of Lithuania on 14 July 2011 by alleging that Lithuania violated Articles 3, 5, 8 and 13 of the European Convention of Human Rights (ECHR).

The applicant was first captured in Faisalabad, Pakistan with the accusations of being a member of Al-Qaeda and a planner of the 9/11 attack¹ and senior lieutenant to Osama bin Laden by the United Sates (US) government. He was the first detainee who designated as High-Value Detainee (HVD).² Such descriptions and classifications for detainees showed up after US former president Bush’s war on terror strategy.

On the other hand, The Court in its preliminary considerations stated that it was next to impossible to access evidence relating to the allegations of applicant due to secrecy policy to the extraordinary rendition operations held by the US. Therefore, the Court based on various sources such as international organizations and non-governmental organizations’ reports, media reports, articles, witness testimonies and most importantly US Senate Committee report on CIA torture. Moreover, the Court also relied on its findings of previous judgement Abu Zubaydah v. Poland and Al-Nashiri v. Poland documentary evidence.

The applicant claimed that he was transferred to the CIA Detention Facility at Guantanamo Bay on 22 September 2003. After US Supreme Court judgement in Spring 2004 which declares the Courts’ jurisdiction over Guantanamo, he had again been secretly transferred, this time to a facility in Morocco where he had been detained incommunicado for almost a year. The applicant after claimed that, his detention in Lithuania had followed his detention in Morocco on 17 February or 18 February 2005. The applicant filed “additional submission” on 10 September 2012 in order demonstrate its transfer to Lithuania on the basis of the data taken from Federal Aviation Authority and Euro Control. Although in his initial submission, the applicant did not indicate any specific date of his rendition from Lithuania, he, in his additional submission indicated 25 March 2016 as a date of his rendition from Lithuania. Furthermore, at the fact-finding hearing the experts, Mr J.G.S and Mr Black testified in line with the applicant’s view. In this hearing, Mr J.G.S stated that it is not possible to pronounce categorically on specific techniques or other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania because they are not explicitly described in any of the reports available to us in public domain. However, I would be prepared to state that the conditions of confinement in the ‘black site’ in Lithuania alone pass a threshold that in our human rights protection culture, signified by the European Convention on Human Rights, amounts to a violation of Article 3.

On the other hand, regarding his detention, the applicant claimed that he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. He relied amongst other things on his own description of his experience in CIA custody and conditions of detention as rendered in the 2007 ICRC Report.³ Additionally, he also produced an extract from partly declassified transcripts of hearings before the Combatant Status Review Tribunal in Guantanamo held on 27 March 2007⁴ which was related to his treatment in CIA custody.

However, the Republic of Lithuania objected to the allegations of applicants’ by claiming there was no evidence which demonstrates such events and accusations occurred within the territory of Lithuania.

2. Domestic Proceedings

Seimas Committee of Foreign Affairs (Lithuanian institution) assigned Seimas Committee on National Security and Defence (CNSD) to launch a parliamentary investigation regarding the existence of CIA secret detention facility and its activities inside Lithuania on 9 September 2009. As a result of its investigation the CNSD identified that;

- “In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time. ...”⁵

- “The Committee established that the SSD (State Security Department) had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. ...”⁶

- “... According to the country’s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. ...”⁷