ABU ZUBAYDAH v. LITHUANIA

SECOND SECTION

Application no. 46454/11
ABU ZUBAYDAH against Lithuania
lodged on 14 July 2011

STATEMENT OF FACTS

The applicant, Mr Abu Zubaydah, is a stateless Palestinian who was born in 1971 in Saudi Arabia and is currently detained in Guantánamo Bay, Cuba. He is represented before the Court by Mr S. Kostas, Ms V. Vandova, Ms H. Duffy, Mr G.B. Mickum, Ms A. Jacobsen and Mr J. Margulies, lawyers practising in London, New York and Chicago.

A.  The circumstances of the case

1. The facts of the case, as submitted by the applicant, may be summarised as follows.

2. Following the terrorist attacks in the United States in 2001, Abu Zubaydah has been described as the first “high-value detainee” (HVD) to be captured and questioned by the United States Central Intelligence Agency (“the CIA”). The applicant’s lawyers noted at the outset that the restrictions on information regarding the entirety of Abu Zubaydah’s detention necessarily mean that this case presents a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. Several factors heighten the already significant challenges related to uncovering and presenting evidence in a case of this nature:

(i) first, the clandestine nature of the rendition operation coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme;

(ii) second, the lack of an investigation by the Lithuanian authorities, in whose hands much of the necessary information rests, impeding access to information; and

(iii) third, the unprecedented restrictions on communication between Abu Zubaydah, his counsel and the Court, precluding the presentation of information or evidence directly from the applicant or in relation to the client. Only US counsel with Top Secret security clearance may have access to the client, and all information obtained from the client is presumptively classified, so that counsel are not able to disclose to other members of the legal team or to the Court any information obtained from the client or other classified sources. A request for release of an affidavit from Abu Zubaydah is pending in this case, but, as is routinely the case, this request will involve the need for litigation in a US court. In addition, if the document is released, it is likely to be heavily redacted. Attempts to declassify drawings and writings by the applicant during his period of detention and torture have been unsuccessful. The applicant’s lawyers thus described Abu Zubaydah as “a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case. His story was therefore to be told by reference principally to publicly available documentation”[1].

1. The applicant’s version of events as to his capture, detention and rendition to Lithuania

3. The applicant’s lawyers submitted that on 28 March 2002 agents of the USA and Pakistan seized Abu Zubaydah from a house in Faisalabad, Pakistan. In the course of the operation he was shot several times, in the groin, thigh and stomach, resulting in critical wounds, and taken into the custody of the CIA.

4. Prior to his rendition to Lithuania, the CIA held Abu Zubaydah in secret detention facilities in four countries on four continents: after capturing him in Pakistan in 2002, the CIA transferred him to a secret facility in Thailand, from where he was transferred to a facility in Poland on 4 December 2002, and on 22 September 2003 to a secret CIA facility at Guantánamo Bay. It is reported that in Spring 2004, in anticipation of the US Supreme Court granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court, he was again secretly transferred, this time to a facility in Morocco, where he was detained secretly for almost a year.

5. In July 2011, the Associated Press reported that “according to two former US intelligence officials” Abu Zubaydah was held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania followed his detention in Morocco. On the basis of flight information obtained from flight control agencies pursuant to a freedom of information request by non-governmental organisations Access Info Europe, Reprieve and INTERIGHTS, the applicant’s lawyers believed that Abu Zubaydah was transferred from Morocco to Lithuania in early 2005.

(a) Transfer of Abu Zubaydah to Lithuania

6. Relying on publicly available materials as regards flight plans which they had provided to the Court, the applicant’s lawyers submitted that planes were contracted by the CIA to perform rendition flights starting in February 2005. On 15-19 February 2005, two planes with the registration numbers N787WH and N724CL, at the behest of Computer Science Corporation, travelled from the USA to Lithuania via Morocco and back to the USA.

7. On the basis of data obtained from the Federal Aviation Authority and Eurocontrol, the applicant’s lawyers submitted that on 15 February 2005 a plane with the registration number N787WH flew from the USA to the Azores, Portugal. On 17 February that aircraft headed to Malaga, Spain, arriving in Rabat, Morocco, in the early hours of the following day. After two hours in Morocco it proceeded to Romania. The aircraft left Romania in the afternoon of 18 February and arrived in Palanga, Lithuania, at 6.09 p.m.

Eurocontrol and Palanga airport records indicated that the plane left Palanga shortly afterwards, at 7.30 p.m., and eventually returned to the United States.

The applicant’s lawyers noted that although the Lithuanian parliamentary inquiry (see paragraphs 63-67 below) cited flight N787WH from Romania to Palanga in Lithuania on 18 February 2006, neither that inquiry nor any comment by Lithuanian prosecutors referred to the plane having been to Morocco.

8. On the basis of the data from the Federal Aviation Authority and Eurocontrol the applicant’s lawyers also submitted that another aircraft, which they linked to the CIA, registered as N724CL, flew from the United States via the Azores, and the Canary Islands (Spain). The plane arrived in Rabat just before 2 a.m. on 17 February. The aircraft left after 3 a.m., stopped in Amman, Jordan, and then arrived in Vilnius around 6.15 p.m. the same day. After 90 minutes it left Vilnius for Iceland and then returned to the United States via Canada.

The applicant’s lawyers noted that the presence in Lithuania of N724CL was not mentioned by the Lithuanian parliamentary inquiry.

9. On the basis of the above flight plans, of which they gave details in the application to the Court, the applicant’s lawyers argued that from 17 February 2005 Abu Zubaydah was held in Lithuania in a secret detention facility constructed and equipped specifically for CIA detention, in accordance with prior authorisation from high-level Lithuanian authorities.

(b) Transfer of Abu Zubaydah from Lithuania

10. The applicant’s lawyers stated that it appeared from the data provided by Eurocontrol that at 10.25 p.m. on 25 March 2006 a Boeing 737 with the registration number N733MA landed in Palanga airport from Porto, Portugal. After 90 minutes in Palanga, the aircraft left Lithuanian territory for Cairo, Egypt. The plane had been chartered by Computer Sciences Corporation and was operated by Miami Air International, Florida.

11. In their letter of 10 September 2012 the applicant’s lawyers noted a finding during the Lithuanian parliament inquiry to the effect that a Boeing 737 with the registration number N733MA arrived in Palanga on 25 March 2006. No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”.

12. The applicant’s lawyers submitted that after Abu Zubaydah was transferred by extraordinary rendition from Lithuanian territory he was detained in an undisclosed facility in a third country, from where he was later transferred to United States custody at Camp 7 at the US naval base at Guantánamo Bay, Cuba. The applicant remains there in incommunicado detention to this day. The applicant has never been charged with a crime, nor has he been provided with an effective opportunity to challenge the lawfulness of his detention.

2. The applicant’s treatment during rendition and secret detention

13. The applicant’s lawyers noted that there were no publicly available government documents specifically detailing his treatment during his detention in Lithuania, unlike as regards previous periods of Abu Zubaydah’s detention in CIA custody. This gap in the public record was partly a consequence of the fact that he was detained in Lithuania after the CIA Office of Inspector General had investigated and reported on unauthorised abusive treatment of detainees in CIA custody. Moreover, Lithuania’s role in the CIA programme was first publicly reported more than two years after the Council of Europe’s investigative reports (see paragraphs 54-62 below). There has also been no meaningful investigation by the Lithuanian authorities. Neither Lithuania nor the United States have provided any information about the specific conditions and treatment to which they subjected Abu Zubaydah during his detention in Lithuania. Also, restrictions imposed by the United States currently preclude any direct evidence from the applicant in this respect being shared with the Court. United States counsel had requested the US authorities to declassify an affidavit by Abu Zubaydah so it can be submitted to the Court in support of this application, but they were still awaiting a response from the various declassification agencies.

14. Despite these challenges and impediments to having access to and presenting evidence, the applicant’s lawyers maintained that clear inferences could be drawn from certain categories of evidence that were available to the Court (the references to that evidence are given in paragraphs 63-83 of the application). The first category related to information concerning the treatment of the applicant at the hands of the same principal custodians, before and after his period of detention in Lithuania. The United States Government documents extensively described Abu Zubaydah’s ill-treatment in CIA detention, in general and at other sites, from which it was possible to infer that elements of this treatment continued while he was detained in Lithuania. This inference was further supported by the second category of available information that related to the regime of detention conditions and interrogation techniques that were authorised for use on CIA detainees such as Abu Zubaydah during the period of his detention in Lithuania.

(a) Abu Zubaydah’s treatment in the CIA Programme

15. The applicant’s lawyers noted that inquiries into the United States’ abuses of human rights after 11 September 2001 have often focused on the authorisation and nature of Abu Zubaydah’s interrogation, in large part because the CIA’s “enhanced interrogation” programme was first used and tested on Abu Zubaydah, and the conditions of his detention, interrogation and torture represented a significant shift in United States policy. The lawyers provided the Court with references to publicly available documents which, in their view, showed a systematic approach to rendition, detention and interrogation which utilised methods amounting to torture and
ill-treatment. They also noted that the Court had access to later documents, created after the period of Abu Zubaydah’s initial ill-treatment, which, in their view, showed that a systematic regime of abuse was in place during the period of his detention in Lithuania.

16. The lawyers for the applicant submitted that after Abu Zubaydah’s capture the CIA proceeded to test a number of coercive techniques on him by way of experiment. Only weeks before these experiments on Abu Zubaydah began, the United States Deputy Defence Secretary Paul Wolfowitz issued a directive removing the requirement that treatment of detainees adhere to the Nuremberg Directives for Human Experimentation. A former national security officer who was familiar with the treatment of Abu Zubaydah has explained that for the CIA, Abu Zubaydah was “...an experiment. A guinea pig. I’m sure you’ve heard that a lot. There were many enhanced interrogation [methods] tested on him that were never discussed before we settled on the ten [techniques].” After months of torture, the United States Department of Justice Office of Legal Counsel issued a memorandum on 1 August 2002 authorising the CIA’s use of ten identified “enhanced interrogation techniques” on Abu Zubaydah, and provided general guidelines for determining the lawfulness of additional enhanced interrogation techniques.

17. The applicant’s lawyers also relied on the CIA’s Inspector General Report and a report by the United States Senate Armed Services Committee, among other official and publicly available United States Government documents, which specified in some detail the nature and effect of his torture and ill-treatment. The applicant’s lawyers submitted that the CIA interrogators, among other things: chained Abu Zubaydah to a chair for a period of weeks; slammed him by the neck into concrete walls; forced him into a small black box for two hours and in a somewhat larger black box for up to eighteen hours; hung him naked from the ceiling; and kept him awake for eleven consecutive days, spraying him with cold water if he fell asleep; blasted rock music at him at top volume; stripped him naked; made his room so cold that he turned blue; denied him pain medication for his injuries; subjected him to “waterboarding” simulated drowning, doing so eighty-three times in one month.

18. According to publicly available reports, the CIA videotaped the interrogation of Abu Zubaydah “day and night”, including during the use of waterboarding and while he was sleeping in his cell. Reports suggest that the purpose of recording Abu Zubaydah was to gain insight into his “physical reaction” to the techniques used against him.

19. Shortly after Abu Zubaydah’s transfer from CIA custody to United States military custody, in September 2006, President Bush first acknowledged that the CIA had secretly detained him in facilities outside the United States. President Bush stated that he would not reveal “the specifics of this programme, including where these detainees have been held and the details of their confinement,” but he did state that the CIA had resorted to “an alternative set of procedures” and “tough” interrogation techniques, in an effort to obtain information from Abu Zubaydah and others held by the CIA.

20. President Bush later acknowledged in his memoir that, acting on the advice of lawyers and others, he had personally authorised the CIA to use waterboarding or simulated drowning on Abu Zubaydah.

21. The applicant’s lawyers submitted that the United States Government had prohibited disclosure of Abu Zubaydah’s first-hand description of his experience in the CIA programme. One of the few public sources of Abu Zubaydah’s description of his experience was an International Committee of the Red Cross (ICRC) memorandum which was disclosed without authorisation. After his transfer to Guantánamo Bay in September 2006, the ICRC interviewed him and thirteen other victims of CIA secret detention and described the statements in a memorandum dated 14 February 2007. The ICRC determined that Abu Zubaydah was the only detainee who was subjected to all the authorised enhanced interrogation techniques.

22. Abu Zubaydah described to the ICRC some of the abuse he endured while in CIA custody, in part as follows:

“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me.... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations.

During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.”

23. The ICRC report suggested that Abu Zubaydah understood that he was the first person to be subjected to this treatment in United States custody, and that there were few predetermined limits to how far his abuse might go: “I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt as though they were experimenting and trying out techniques to be used later on other people.”

(b) Authorised treatment during Abu Zubaydah’s rendition to and detention in Lithuania

24. The applicant’s lawyers submitted that a further indication of the nature of the treatment of Abu Zubaydah in Lithuania could be seen from the authorised conditions of detention and transfer and interrogation techniques applicable at the relevant time, as prescribed by the United States Government. They noted, however, that there has been no public investigation of the conditions of detention and treatment of detainees at the site in Lithuania that might clarify whether those CIA guidelines were in fact complied with.

(i) Conditions during detention

25. From 2003 to 2006 the conditions of detention in CIA detention facilities were purportedly governed by the Guidelines on Confinement Conditions for CIA Detainees signed by the CIA Director, George Tenet. The guidelines were not amended until October 2006, after Abu Zubaydah had been removed from CIA custody and in response to legislation passed by the United States Congress to extend protection against cruel and inhuman treatment to CIA detention facilities overseas.

26. It was clear to the applicant’s lawyers from two United States legal reviews of the conditions of confinement that at least the following “six standard conditions of confinement” were in use at the relevant time:

“(i) Blindfolds or hooding designed to disorient the detainee and keep him “from learning his location or the layout of the detention facility”;

(ii) Removal of hair “[u]pon arrival at the detention facility” such that “the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair”;

(iii) Incommunicado, solitary confinement;

(iv) Continuous noise up to 79 dB, played at all times, and maintained in the range of 56-58 dB in detainees’ cells and 68-72 dB in the walkways;

(v) Continuous light such that “each cell [was] lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminate the cell to about the same brightness as an office”;

(vi) Use of leg shackles “in all aspects of detainee management and movement.” Some detainees were shackled for 24-hours per day.”

27. In combination, the conditions meant that high-value detainees such as Abu Zubaydah were “in constantly illuminated cells, substantially cut off from human contact, and under twenty-four-hour surveillance”, for more than four years, including throughout his detention in Lithuania. The conditions of confinement were designed to enhance interrogation, in addition to providing security within the facility. United States Government documents recognised that:

“(i) the solitary confinement of detainees continued for years and may have altered their “ability to interact with others”;

(ii) a detainee remained “confined to his cell for much of each day, under constant surveillance, and [was] never permitted a moment to rest in the darkness and privacy that most people seek during sleep”;

(iii) that “[t]hese conditions are unrelenting and, in some cases, have been in place for several years”; and

(iv) “[t]hat these conditions, taken together and extended over an indefinite period, may exact a significant psychological toll.””

(ii) Interrogation techniques

28. Numerous publicly available United States Government documents described the regime of authorised interrogation techniques applicable during the relevant period, namely while Abu Zubaydah was detained in Lithuania. As noted by the European Committee for the Prevention of Torture when it visited Lithuania in 2010 (see paragraphs 84-88 below), “[t]he interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman or degrading treatment.” In this connection the applicant’s lawyers also referred to a 30 May 2005 memorandum from the United States Department of Justice Office of Legal Counsel, where authorised treatments were described as comprising three basic categories of abuse: “conditioning techniques”, “corrective techniques”, and “coercive techniques”.

29. Conditioning techniques were used to put the detainee in a “baseline” state, and to “demonstrate to the [detainee] that he has no control over his basic human needs.” The conditioning techniques were designed with a view to their “cumulative effect”. The specific conditioning techniques included nudity, dietary manipulation and sleep deprivation.

30. Corrective techniques entailed some amount of physical abuse used “to correct, startle, or to achieve another enabling objective.” The techniques “dislodge expectations that the detainee will not be touched.” Corrective techniques include “insult (facial) slap, abdominal slap, facial hold, and attention grasp.” The techniques were designed to “instil ... fear and apprehension”.

31. Coercive techniques “place the detainee in more physical and psychological stress than the other techniques.” The techniques included
“walling, water dousing, stress positions, wall standing, and cramped confinement” and “waterboarding”. The techniques could be used simultaneously.

3. Disclosure of the CIA’s secret rendition programme

32. On 2 November 2005, when the applicant’s lawyers believe that Abu Zubaydah would still have been in Lithuania, The Washington Post published an article claiming that as part of the campaign against terrorism the CIA had conducted covert detention and interrogation of suspected terrorists and was hiding and interrogating some of its most important detainees in Eastern Europe. Following the publication of the article by The Washington Post and subsequent similar publications in the media about the CIA covert detention and interrogation programme, as well as its alleged implementation in Europe, the Parliamentary Assembly of the Council of Europe and the European Parliament initiated their own investigations of the matter.

(a) Inquiry by the Council of Europe

(i) The Article 52 Procedure[2]

33. On 21 November 2005 the Secretary-General of the Council of Europe invoked the procedure under Article 52 of the European Convention on Human Rights with regard to reports of European collusion in secret rendition flights. Member States were required to give information on the restraints provided for in their internal law over acts by foreign agents in their jurisdiction, and on legal safeguards against unacknowledged deprivation of liberty.

34. The Secretary General also inquired whether since 1 January 2002 any person acting in an official capacity had been involved in any manner, whether by action or omission, in the unacknowledged deprivation of liberty of any individual, or transport of any individual while so deprived of their liberty, including where such deprivation of liberty may have been carried out by or at the instigation of any foreign agency. Information was to be provided on whether any official investigation was under way or had been completed.

35. As regards Lithuania, the reply was prepared by the Ministry of Foreign Affairs on the basis of information provided by the relevant State institutions. The reply was approved at a consultation meeting of the Lithuanian Government and was discussed at a meeting of the Seimas Foreign Affairs Committee when considering the issue of the activities of the United States secret services in Europe allegedly carried out in violation of human rights. No competent State institution, either in the course of preparation of the replies by the Ministry of Foreign Affairs or during consideration of the issue by the Seimas Foreign Affairs Committee, provided evidence confirming that the CIA or other United States secret services had been engaged in the illegal confinement of suspected terrorists on Lithuanian territory. Neither was there any information confirming that Lithuania’s airports had been used for covert transportation of suspected terrorists.

36. In February 2006 the Lithuanian Government provided the Secretary General of the Council of Europe with answers to the questions posed. The response was a brief summary of the legal framework governing the functioning of foreign agents in Lithuania and the theoretical possibility of claiming damages for unlawful actions by State officials.

37. In a letter of 7 March 2006 the Secretary General noted that the explanations provided by the Lithuanian Government did not address all the questions in enough detail. He asked for supplementary explanations on 1) control mechanisms regarding transiting aircraft which may be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft; 2) whether since 1 January 2002 any Lithuanian officials had been involved in secret rendition, and whether any investigations had been conducted in that connection.

(ii) Dick Marty investigation and follow-up by the Parliamentary Assembly

38. On 13 December 2005 the President of the Parliamentary Assembly of the Council of Europe (“PACE”) asked the Committee on Legal Affairs and Human Rights to investigate the allegations of “extraordinary renditions” in Europe. Senator Dick Marty of Switzerland was appointed special rapporteur.

39. On 12 June 2006 the PACE published the 2006 Marty report[3]. The PACE reaffirmed its commitment to overcoming the threat of terrorism. That being so, it also found that in the name of fighting terrorism “the United States had progressively woven a clandestine “spider’s web” of disappearances, secret detentions and unlawful inter-state transfers, often including countries notorious for their use of torture”. Hundreds of people had become trapped in that “spider’s web”, which, furthermore, had been spun out with the collaboration or tolerance of many countries, including several Council of Europe member States. This cooperation, which took place in secret and without any democratic legitimacy, had spawned a system which was utterly incompatible with the fundamental principles of the Council of Europe. The facts and information gathered to that date, along with new factual patterns in the process of being uncovered, indicated that the key elements of that “spider’s web” had notably included: a
world-wide network of secret detentions at CIA “black sites” and in military or naval installations; the CIA’s programme of “rendition”, under which terrorist suspects were flown between States on civilian aircraft, outside the scope of any legal protection, often to be handed over to States which customarily resort to degrading treatment and torture; and the use of military airbases and aircraft to transport detainees as human cargo to Guantánamo Bay in Cuba or to other detention centres.

The PACE also held that “some Council of Europe member States had knowingly colluded with the U.S. to carry out these unlawful operations; some others had tolerated them or simply turned a blind eye. They had also gone to great lengths to ensure that such operations remained secret and protected from effective national or international scrutiny” (paragraphs 3-9 of the Resolution).

40. The Dick Marty report explains in great detail the CIA methodology of treating a detainee during rendition. Although the rendition cases were individual, it seemed that in each separate case rendition was carried out in an almost identical manner. Collectively the cases in the report testified to the existence of an established modus operandi of rendition, put into practice by an elite, highly trained and highly disciplined group of CIA agents, who travelled around the world mistreating victim after victim in exactly the same fashion. Dick Marty considered that no security measure justified such a massive and systematic violation of human rights and dignity. In the cases examined, although the agents were aware that they were dealing with possibly dangerous people, the principle of proportionality was simply ignored and with it the dignity of the person. In several instances, the actions taken in the course of a “security check” were excessive in relation to security requirements and could therefore constitute a violation of Article 3 of the European Convention on Human Rights. While these did not appear to reach the threshold for torture, they could well be considered inhuman or degrading, particularly in the extent to which they humiliated the person being rendered (paragraphs 79-91 of the resolution).

41. On 27 June 2007 the Council of Europe Parliamentary Assembly adopted Resolution 1562 (2007) on “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report”. By this time it considered as established with a high degree of probability that such secret detention centres operated by the CIA had existed for some years in Poland and Romania, though it did not rule out the possibility that secret CIA detentions may also have occurred in other Council of Europe member states. These secret places of detention formed part of the
High-Value Terrorist Detainee (HVD) programme publicly referred to by the President of the United States on 6 September 2006. The PACE observed that implementation of that programme had given rise to repeated serious breaches of human rights. The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfilled the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Furthermore, secret detention as such was contrary to many international undertakings, entered into both by the United States and the Council of Europe member States concerned.

Lithuania was not mentioned in the document. However, the PACE urged the States to conduct national investigations of the alleged implementation of the covert CIA programme of detention and interrogation of suspected terrorists, and proposed that the democratic control and supervision of secret services be strengthened.

b) Inquiry by the European Union

42. On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition (TDIP Committee) and appointed Mr Claudio Fava as rapporteur, with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.

It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.

43. On 6 July 2006 the European Parliament adopted a resolution[4], condemning European States’ participation in the CIA rendition programme. Lithuania was not mentioned in the resolution.

44. On 30 January 2007, the final report of the Fava Inquiry was published[5]. As far as Lithuania is concerned, the report noted that: 1) Lithuania provided no written response to the committee’s invitation to cooperate; 2) official representatives of Lithuania did not receive any request for meetings with the investigators of the TDIP Committee; 3) Lithuania did not provide the investigators[6] with anything useful. The Committee’s Working Document No 8 on the companies linked to the CIA, the aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers[7], contains a record that one CIA-operated aircraft, registered N8213G, made one stopover in Lithuania. A subsequent resolution adopted by the European Parliament[8] in 2007 does not mention Lithuania.

4. Lithuania’s knowledge of the CIA Rendition, Detention and Interrogation Programme

45. The applicant’s lawyers observed that when Lithuania and the CIA established a “black site” near Vilnius in March 2004 there existed a large amount of publicly available information about the secret detention and torture of detainees in CIA custody in secret detention sites around the world. On this point they submitted numerous excerpts from press articles, claiming that those excerpts represented only a small fraction of the information that was widely available and would have been known by Lithuanian officials.

(a) Media reports on alleged rendition and human rights violations occurring in Guantánamo Bay and Afghanistan

46. Firstly, the lawyers for the applicant referred to a considerable number of articles in the Lithuanian press published from 2003 onwards, referring to abduction and transfer of detainees to Guantánamo and the conditions of their detention. They noted that the extraordinary rendition programme and the abusive practices included in it have been firmly in the international public domain since 2002, and since at least 2003 have been covered by media commonly followed in Lithuania. For the applicant’s lawyers, the sample of the provided media coverage, with an emphasis on media published in Lithuania, was indicative of what information was publicly available of the United States’ secret detention practices prior to or during the time when the Lithuanian authorities were cooperating with the United States in the operation of a “black site” in Lithuania. It gave an illustration of the much broader deluge of international media attention dedicated to the issue between 2003 and 2005, to which the Government would also have had access. Among other sources, the applicant’s lawyers noted the following:

“(i) On 18 June 2004, the Baltic News Service reported on secret CIA detention, noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On 26 July 2004, D, the leading Lithuanian online news site, published a lengthy discussion of the “question of means” in the “war on terrorism.” The report described the dilemma facing European states supporting the U.S. fight against terrorism in the light of the abusive United States detention and interrogation policies in Afghanistan, Guantánamo and Iraq. In October 2004, a major daily, Lietuvos Rytas, described the ongoing scandal of prisoner torture by United States officials in Afghanistan. In March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the detention and torture tactics used by the USA.

(ii) Likewise, on 17 December 2004, the Baltic News Service reported on the secret CIA prison established at Guantánamo Bay and the incommunicado detention of detainees there.

(iii) On 7 March 2005, within weeks of Abu Zubaydah’s transfer into Lithuania, major Lithuanian news agency ELTA reported on the classified Top Secret executive order issued by United States President George Bush in the first days after 11 September 2001 that gave broad authority for the CIA to conduct secret renditions, detention and interrogation. Referring to the “programme of prisoner rendition”, ELTA described some of the abusive conditions under which detainees were held and interrogated.

(iv) The following week, ELTA reported that European officials would investigate whether the CIA agents had violated the law while carrying out rendition operations in Europe involving transfer of persons to countries where they could face torture. According to ELTA, “the CIA usually organises these operations with the consent of local surveillance organisations; the governments of Italy, Germany and Sweden are investigating whether these actions infringe local laws and human rights.” This was followed on 25 October 2005 by the Baltic News Service reporting that the United States government was seeking to exempt CIA employees from the application of the prohibition of cruel and humiliating treatment.

(v) On 2 November 2005, ELTA reported on allegations of secret detention facilities in neighbouring Poland and Romania, noting that both denied the existence of CIA secret prisons on their territory but that the Council of Europe was investigating the claims.

(vi) In November 2005, one month before Abu Zubaydah was transferred out of Lithuania, reports began to emerge in Lithuania that aircraft associated with the CIA rendition programme, including N313P and N379P, had used Lithuanian airspace. Lithuanian newspapers published numerous reports in November 2005 detailing the nature of the allegations of a CIA network of secret prisons.”

(b) International cases and reports

47. The applicant’s lawyers also submitted that Lithuanian Government officials had participated in proceedings of international organisations which addressed alleged abuses committed in United States detention. From those sources, as well as the media sources referred to above, those officials would clearly have been aware of the concerns regarding specific abuses of detainees in United States custody. On this point references were made to discussions at the level of the United Nations and the International Committee of the Red Cross, which took place between January 2002 and December 2005.

(c) Evidence of knowledge from statements by Lithuanian Government officials

48. The applicant’s lawyers also maintained that the former President of Lithuania, Rolandas Paksas, had stated that Mečys Laurinkus, former Director of the Department of State Security, had asked him whether it would be possible to bring individuals accused of terrorism to Lithuanian territory and detain them “unofficially”. Mr Laurinkus “confirmed that he had spoken with the then President, R. Paksas, about the possibility of bringing people suspected of terrorism to Lithuania.” Mr Laurinkus maintained that there had been no specific request from the CIA for such a prison, but that he had asked for President Paksas’ permission to host a “black site” “because I knew what was going on in the world, because I had to inform the President on what was going on in the world.” He further explained in another interview on the same day: “I knew and I ought to have known what was going on in the world, and that this practice was going on. By the way, Bush didn’t deny this, well, not until much later. But the practice was happening, and I inquired about the President’s position.”

(d) Knowledge of conditions of detention at Guantánamo Bay specifically

49. Lastly, the applicant’s lawyers pointed out that there had been Lithuanian newspaper reports on the illegality of detaining prisoners at Guantánamo Bay soon after the site’s establishment. On 2 February 2002, the Lietuvos Rytas daily reported European concerns about the potential for the use of torture at Guantánamo. On 4 March 2004, Baltic News Service reported that the United States Department of Defence had announced that Guantánamo prisoners did not have the right to legal counsel during their annual hearings reviewing the lawfulness of their detention.

50. On 9 May 2004, ELTA reported on “cruel interrogation methods” employed at Guantánamo, and noted that they had been approved at the highest levels of the United States Government. A week later, on
13 May 2004, the Baltic News Service reported that the ICRC had announced a new report in which it criticised the conditions of detention of hundreds of prisoners at Guantánamo, describing the situation as critical. The ICRC reported that some of the conditions in military custody amounted to torture. Lietuvos Rytas described prisoner abuse as an everyday situation in the United States military.

51. A month later, on 9 June 2004, the Baltic News Service reported that lawyers for United States President George Bush had determined that he was not bound by US and international law prohibiting torture, and that the President’s commander-in-chief authority exceeded any limitations posed by the Convention against Torture or the Geneva Conventions. The Baltic News Service also reported that the legal memorandum suggested that President Bush should issue a directive allowing his commander-in-chief authority to be exercised by subordinates.

52. On 15 June 2004, the Baltic News Service described the torture methods applied at Abu Ghraib Prison as originating at Guantánamo Bay, quoting a US military official involved in the abuse at Abu Ghraib as stating that she was ordered to “treat prisoners ‘like dogs’” and that she had learned at Guantánamo “that prisoners have to earn absolutely everything.” The United States’ objective at Abu Ghraib, as described by the Baltic News Service, was to “Gitmo-ise” the treatment of prisoners, meaning to use the techniques employed at Guantánamo in Abu Ghraib. On 10 February 2005 ELTA reported again on sexual abuse of prisoners at Guantánamo.

53. On 16 June 2005, the Baltic News Agency reported the United States’ Government’s assertions that detainees at Guantánamo could be held there indefinitely.

5. Publicity on secret prisons in Lithuania and ensuing inquiries

54. On 20 August 2009, the US television channel ABC News announced that up to the end of 2005 a secret CIA prison had been operating in Lithuania for the purposes of detention of high-value al-Qaeda terrorists. According to “former CIA officials directly involved or briefed” on the CIA programme, “Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country’s capital, where as many as eight suspects were held for more than a year.”

55. An early response to the report that Lithuania had hosted a CIA “black site” was issued by Tomas Gulbinas, a spokesman for the Lithuanian embassy in the United States: “The Lithuanian Government denies all rumours and interpretations relating to an alleged secret prison that supposedly functioned on Lithuanian soil and was possibly used by [the CIA].”

56. On 9 September 2009 the Seimas Committee on National Security and Defence (hereinafter referred to as “the CNSD” or “the Committee”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions on the media reports regarding the transportation and confinement of CIA detainees in the Republic of Lithuania. The committees had no evidence confirming the existence of a CIA prison in Lithuania. The written replies submitted by State institutions denied that such a prison ever existed.

57. During his visit to Lithuania on 20 October 2009, Commissioner for Human Rights of the Council of Europe Thomas Hammarberg urged a thorough investigation of the suspicions that a secret CIA prison had operated in the country.

58. In November 2009 ABC News reported the location of a secret facility in a former horseback riding school in the village of Antaviliai, Lithuania, approximately 20 kilometres north-east of Vilnius
(“Project No. 2”). The report suggested that the site had been used as a detention centre since September 2004.

59. According to the lawyers for the applicant, the records from the Land Registry in Vilnius show that in March 2004 the horseback riding school property was sold by local owners to Elite, LLC. ABC News described Elite, LLC as “a now-defunct company registered in Delaware, Panama and Washington D.C.” According to Agence France Presse, the United States embassy in Vilnius was involved in acquiring the site for two million Lithuanian litai (approximately 579,000 euros (EUR)). Land registry documents show that the property was then sold to the Lithuanian Government in January 2007. The site is now reportedly used as a training centre by the SSD.

60. The Washington Post reported that the prison was “a large
two-storey building without windows, ringed by a metal fence and security cameras.” The prison was described by local witnesses as built by
English-speaking contractors using prefabricated supplies transported by road into the construction site.

61. According to the lawyers for the applicant, publicly available photographs of the secret prison reveal the construction of a new and separate facility at the rear of the riding school.

62. In November 2009 a source quoted by ABC News described the interior construction as follows:

“According to sources who saw the facility, the riding academy originally consisted of an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built a thick concrete wall inside the riding area. Behind the wall, it built what one Lithuanian source called a ‘building within a building’.

On a series of thick concrete pads, it installed ‘prefabricated pods’ to house prisoners, each separated from the other by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. The CIA converted much of the rest of the building into garage space.

Intelligence officers working at the prison were housed next door in the converted stable, raising the roof to add space. Electrical power for both structures was provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure were 110-volt, meaning they were designed for American appliances. European outlets and appliances typically use 220 volts.

The prison pods inside the barn were not visible to locals. They describe seeing large amounts of earth being excavated during the summer of 2004. Locals who saw the activity at the prison and approached to ask for work were turned away by English-speaking guards. The guards were replaced by new guards every ninety days.”

(a) The inquiry by the Lithuanian Parliament

63. Taking account of publicly voiced interpretations on the topic of the alleged CIA prison, the Lithuanian Parliament decided to examine the matter. On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning its Committee on National Security and Defence to conduct a parliamentary investigation of the alleged transportation and confinement on Lithuanian territory of individuals detained by the United States Central Intelligence Agency.

The following investigation questions were posed to the Committee:

1) whether CIA detainees were subject to transportation and confinement in the territory of the Republic of Lithuania;

2) whether secret CIA detention centres had operated in the territory of the Republic of Lithuania;

3) whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania.

64. While conducting the parliamentary investigation, the CNSD interviewed, either orally or in writing, fifty-five individuals who might have been aware of information or who declared that they were aware of information relating to the issue under investigation. The Committee interviewed politicians (up to the level of State Presidents), civil servants and officers who had held office between 2002 and 2005 or at the time of the investigation.

65. In addition, requests for submission of information in writing were submitted to the appropriate ministries, the civil aviation administration, the State border guard service (“SBGS”) and other authorities. Requests were also submitted to the international organisation Amnesty International, the rapporteur for the investigation conducted by the PACE, Dick Marty and, with the assistance of the Ministry of Foreign Affairs, the appropriate authorities in the United States. The authorised representatives of the latter replied orally.

In the course of the parliamentary investigation, some facilities and premises were examined.

66. On 19 January 2010 the Seimas adopted resolution No. XI-659, by which it endorsed the CNSD Conclusions on the possible transportation of persons to and incarceration in the territory of the Republic of Lithuania by the CIA (“the CNSD Conclusions”), which can be summarised as follows:

“1. Were CIA detainees subject to transportation and confinement in the territory of the Republic of Lithuania?

In 2002-05, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on twenty-nine occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time:

Two CIA-related aircraft landed at Vilnius International Airport:

“C-130”, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.);

“Boeing 737”, registration No N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m. According to the documents of the SBGS, this aircraft arrived from Antalya and departed for Oslo).

Three CIA-related aircraft landed at Palanga International Airport:

“CASA C-212”, registration No N961BW (2 January 2005, operator Presidential Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on 5 January 2005 at 9 a.m.);

“Boeing 737”, registration No N787WH (18 February 2005, operator Victory Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at 7.30 p.m. It was recorded that the aircraft arrived carrying five passengers and three crew members);

“Boeing 737-800”, registration No N733MA (25 March 2006, route
Porto (Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.).

During the investigation, three occasions were established on which, according to the testimony of the SSD officers, they received the aircraft and escorted the delivery with the knowledge of the heads of the SSD:

1) “Boeing 737”, registration No N787WH, which landed in Palanga on 18 February 2005. According to data submitted by the SBGS, five passengers arrived in that aircraft, none of whom was mentioned by the former Deputy Director General of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the meeting. According to Customs data, no thorough customs inspection of the aircraft was carried out and no cargo was unloaded from it or onto it;

2) “Boeing 737”, registration No N787WH, which landed in Vilnius on 6 October 2005. According to data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board of the aircraft. No customs inspection of the aircraft was carried out;

3) “Boeing 737-800”, registration No N733MA, which landed in Palanga on 25 March 2006. According to Customs data, no customs inspection was carried out. The documents of the SBGS contain no records of the landing and inspection of this aircraft.

The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist.

Deputy Director General of the SSD Dainius Dabašinskas, with the knowledge of Director General of the SSD Arvydas Pocius, provided the US officers with opportunities to have unrestricted access to the aircraft on at least two occasions. In addition, at least on one occasion the opportunities for inspection of the aircraft by the SBGS officers were deliberately restricted. In all the above-mentioned cases, there was no customs inspection. Therefore, it was impossible to establish either the identity of the passengers or the purpose of the cargo.

2. Did secret CIA detention centres operate in the territory of the Republic of Lithuania?

The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. The cases of partnership cooperation which are of relevance to the parliamentary investigation, carried out by the SSD in 2002-2006 and involving the equipment of certain tailored facilities, may be referred to as Project No. 1 and Project No. 2.

While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania, however, according to the data available to the Committee, the premises were not used for that purpose.

The individuals who made statements to the Committee deny that conditions were created or that it was possible to hold and interrogate detainees at the facilities of Project No. 2, which were put in place early in 2004. However, the layout of the building, its enclosed nature and protection of the perimeter, as well as the sporadic presence of SSD staff there allowed for actions to be taken by officers of the partners without monitoring by the SSD and allowed the partners to use the infrastructure as they chose.

SSD officers participated in the implementation of this project together with partners and, according to the officers, had unrestricted access to all the premises of the facility, however, when representatives of the partners were present in the facility, they did not visit some of the premises. The time of such meetings and adequate arrangements were communicated to the SSD officers by Deputy Director General of the SSD Dainius Dabašinskas.

According to the SSD officers, representatives of the partners were never left alone in the facility. They were always accompanied by either Dainius Dabašinskas or one of the SSD officers.

According to the information received in the course of the investigation, it is evident that the SSD did not seek to control the activities of the partners in Project No 2. The SSD did not monitor or record cargo brought in and out and did not monitor the arrival and departure of the partners. In addition, the SSD did not always have the opportunity to observe every person arriving and departing.

3. Did state institutions of the Republic of Lithuania (politicians, officers and civil servants) consider the issues relating to activities of secret CIA detention centres in the territory of the Republic of Lithuania, transportation and confinement of detainees in the territory of the Republic of Lithuania?

Information gathered by the Committee and the explanations received by it show that the State Defence Council, the Government and the Seimas have not considered issues relating to any activities of secret CIA detention centres in the territory of the Republic of Lithuania, or to the transportation and confinement of detainees in the territory of the Republic of Lithuania.

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. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place.

On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country’s top officials of the purposes and content of the said Projects.”

67. The Committee’s Conclusions suggested that the Office of the Prosecutor General should investigate whether the actions of Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas displayed evidence of abuse of office or exceeding authority.

(b) Prosecutor General’s pre-trial criminal investigation

68. On 22 January 2010, the Prosecutor General’s Office launched a
pre-trial investigation in criminal case No. 01-2-00016-10, in relation to “abuse of official position” pursuant to Article 228 § 1 of the Criminal Code. The subject of investigation was restricted to and defined by the circumstances stated in the CNSD Conclusions: 1) the arrival of the United States CIA aircraft in Lithuania and departure therefrom, what access United States officials had to the aircraft, and the inspection of the goods and passengers on the aircraft; 2) the implementation of Project No. 1 and Project No. 2; 3) whether the leadership of the State Security Department kept the highest officials of the State informed on the objectives and the content of Project No. 1 and Project No. 2.

69. On 20 September 2010, the United Kingdom human rights organisation Reprieve, acting on behalf of the applicant, wrote to the Prosecutor General requesting the prosecutor to investigate Abu Zubaydah’s detention in a CIA prison in Lithuania and to recognise him as a victim of the rendition, detention and interrogation programme. Darius Raulušaitis, Deputy Prosecutor General, responding on 27 September 2010, explained that the ongoing investigation already included the crimes allegedly committed against Abu Zubaydah:

“[D]uring the pre-trial investigation not only were the circumstances related to abuse of official position with major legal significance (which was why the pre-trial investigation was initiated) investigated, but also the circumstances which define other criminal acts of which possible individual signs may be seen during the pre-trial investigation. Among such criminal acts are those you have pointed out should also be mentioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) as well as illegal transportation of people across national borders (Article 292 of the Criminal Code). Considering the fact that the pre-trial investigation in relation to the circumstances provided in your application is already being conducted, please be advised that the circumstances provided in your application will be considered when performing the said pre-trial investigation No. 01-2-00016-10.”

70. D. Raulušaitis thus assured lawyers acting for Abu Zubaydah that the circumstances concerning Abu Zubaydah’s rendition and secret detention in Lithuania were under investigation. D. Raulušaitis asked Reprieve to submit all written information in its possession, which would establish Abu Zubaydah’s presence in Lithuania as part of the CIA detention, interrogation and rendition programme.

71. Reprieve responded on 18 November 2010, stating that because of restrictions imposed by the United States Government it was unable to provide the investigation with the confidential information confirming Abu Zubaydah’s presence within the territory of Lithuania between 2004 and 2006. However, Reprieve provided a list of sources of evidence that the prosecutor should pursue as part of a thorough investigation. Reprieve also requested information about the progress of the investigation. The prosecutor refused Reprieve’s request on 13 January 2011, on the basis that he considered that Reprieve was “not a party to the proceedings [with] the right to examine the material of the pre-trial investigation”. The prosecutor also noted that, in accordance with Article 177 § 1 of the Code of Criminal Procedure, the material of the pre-trial investigation was not public.

72. The day after writing to Reprieve, on 14 January 2011, the prosecutor closed pre-trial investigation No. 01-2-00016-10 on the ground that “no action/inaction had been committed which constituted evidence of a criminal offence or a criminal misdemeanour.”

73. As the prosecutor’s report reads, in the course of the pre-trial investigation persons questioned were those relevant to the subject matter of the investigation and possessing significant information for the resolution of the case. Documents essential for the pre-trial investigation were obtained, and information and premises inspected: these were referred to in the Conclusions as Project No. 1 and Project No. 2. For the prosecutor, the totality of the information obtained in the course of the pre-trial investigation was sufficient to reach a conclusion and to adopt a procedural decision. It was also noted that a large part of the information obtained in the course of the investigation was to be treated as classified, because it constituted State or official secrets. Accordingly, such information was not discussed in the report in detail, and the document was restricted to the presentation of the motives on which the procedural decision was based.

74. Lastly, the prosecutor observed that in the context of the pre-trial investigation he had examined not only material related to alleged abuse of office, but also whether there was evidence of any other criminal offences in connection with the matters investigated.

75. As regards the arrival of the United States CIA aircraft in Lithuania and departure therefrom, the access the United States officials had to the aircraft and the inspection of goods and passengers on the aircraft, the prosecutor found:

“In the course of the pre-trial investigation it has been established that the aircraft linked with the United States Central Intelligence Agency did arrive in and depart from the Republic of Lithuania. It has also been established that on some occasions Customs and State Border Protection Service inspections ... were not carried out. However, on every occasion such actions were taken in accordance with the procedure stipulated by the Law on Intelligence [Article 9] and the appropriate airport and State Border Protection Service officials had been advised in advance in writing (or verbally) [that SSD officials would meet the aircraft and the goods]. This was confirmed by the documents in the case file which were provided by the SSD, and also by witnesses who have been questioned – airport staff and officials of the SBPS and the SSD. ...It should be noted that Article 16 of the Law on Intelligence stipulates that State institutions and officials are not allowed to interfere with or otherwise influence intelligence activities carried out by intelligence officers. Official vehicles of intelligence staff may not be inspected without the permission of the Prosecutor General.

No data have been obtained in the course of the pre-trial investigation indicating that the aforementioned aircraft were used to illegally bring or remove any persons [to and from Lithuanian territory]. On the contrary, those questioned in the course of the investigation either categorically denied this or stated that they did not have any information in that regard. Obviously, given that no inspection of the aircraft or the motor vehicles used by the intelligence officers had been carried out, this possibility, which is exceptionally theoretical, does remain (and it was so stated in the Parliament’s CNSD Conclusions). However, there is no factual evidence to suggest that actions of such a nature (illegal transportation of persons) took place. Therefore, an assertion that the aircraft linked with the United States Central Intelligence Agency was used to transport or to bring to the territory of the Republic of Lithuania (or to remove from it) individuals detained by the CIA, from the point of view of criminal law is a hypothesis which is not supported by factual evidence. Such a hypothesis is of the same value as a hypothesis that any other persons or goods of restricted circulation were transported. In the absence of factual information to support this hypothesis, it is not possible to bring criminal charges or to continue criminal proceedings in this respect. To reach the opposite conclusion would require specific information, which could allow a finding that a criminal offence has been committed... As has been stated, no such information is available about any possibly criminal offences at the time of this procedural decision.

Accordingly, it must be concluded that the SSD officers, who sought and obtained uninterrupted access to the airports’ territory where the [CIA] aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority and, consequently, did not commit the criminal offence stipulated in Article 228 of the Criminal Code [abuse of office].

Having concluded that there is no information about illegal transportation of persons on board aircraft linked to the United States Central Intelligence Agency, it should also be stated that there are no grounds to bring criminal charges pursuant to Article 291 (unlawful crossing of a State border) or Article 292 (unlawful carrying of persons over a State border).”

76. Regarding the construction and operation of alleged secret prisons (Projects No. 1 and No. 2), the prosecutor stated that:

“In the course of the pre-trial investigation it was established that the SSD of the Republic of Lithuania, together with the CIA of the United States of America, implemented, in 2002, Project No. 1, referred to in the CNSD Conclusions, and in 2004 implemented Project No. 2, referred in the Conclusions. Both projects had been related to the reconstruction and outfitting of the buildings.

(...) The statute of limitations on any alleged abuse of office violations, which was the subject of the investigation, meant that no prosecution was possible for violations in relation to Project No. 1.

Nevertheless, regardless of this procedural impediment to the pre-trial investigation, it should also be noted that in the course thereof no unequivocal information was obtained to the effect that when implementing Project No. 1 the premises were outfitted specifically for the purpose of incarcerating detained persons. Factual information received about specific aspects of the premises (which allows the hypothesis that it was possible to keep a detained person there), when appraised together with the evidence that supports other (different) designations of the premises, and taking into account the fact that there is no information available that [any] detained persons had in fact been taken to or kept in those premises, does not provide a sufficient basis to charge a person with abuse of office and to pursue criminal proceedings.

As to Project No. 2, in the course of the pre-trial investigation no data was received to suggest that this project was used for keeping detained persons. To the contrary, the factual information and the testimony of all the witnesses support other purposes and use of the building, while the circumstances referred to in the [CNSD] Conclusions that ‘the layout of the building, its enclosed nature and protection of the perimeter as well as the sporadic presence of the SSD staff in the premises allowed for actions to be taken by officers of the partners without being monitored by the SSD, and also allowed them to use the infrastructure as they chose’ do not create a basis for criminal charges and merely confirm that cooperation between the SSD and the CIA took place and that the building served other purposes. The real purpose of the building may not be revealed, as it constitutes a State secret.

It should be concluded that by the joint implementation of Project No. 1 and Project No. 2 by the SSD and the CIA a criminal offence under Article 228 of the Criminal Code [abuse of office] has not been committed.

[Moreover], even without restricting oneself merely to legal appraisal of the potentially criminal actions suggested at the beginning of the pre-trial investigation and its qualification in accordance with Article 288 of the Criminal Code, it should be noted that there are no grounds to bring criminal charges in accordance with Articles 100 (treatment of people banned by international law) or 146 (unlawful restriction of liberty), because, as has already been mentioned, during the pre-trial investigation no information was obtained about unlawful transportation of persons, their detention, arrest or other unlawful restriction of their liberty...

This decision to terminate the pre-trial investigation also gives the answer to the statement by Reprieve, received by the Office of the Prosecutor General of the Republic of Lithuania on 20 September 2010. The statement presented a version of events according to which the officers of the United States Central Intelligence Agency between spring 2004 and September 2006 conveyed a detained person, [Abu Zubaydah], to the Republic of Lithuania, detained him in Lithuania and removed him from there. Reprieve did not provide any factual information to support this, no source of information has been provided or revealed, and in the course of the pre-trial investigation, as has been noted, no information was received about illegal transportation of anyone, including [Abu Zubaydah], into or out of the Republic of Lithuania by the United States Central Intelligence Agency.”

77. On the question whether the leadership of the SSD had kept the highest officials of the State informed on the objectives and the content of Project No. 1 and Project No. 2, the prosecutor found:

“As has been correctly stated in the [CNSD] Conclusion, the legal basis for the international cooperation of the SSD is stipulated in the Law on Intelligence, and there is no requirement in law for the directions (or tasks) relating to international cooperation to ‘be cleared’ at any political level (at the State Defence Council or the National Security and Defence Committee [of the Seimas]). The directions to be followed or tasks to be undertaken emerged from a general need for international cooperation and from direct contacts between the SSD and the special services of other countries. In the joint implementation of Project No. 1 and Project No. 2 by the SSD of the Republic of Lithuania together with the CIA of the United States of America, the leadership of the SSD at that time did not advise any high-level official of the State about the objectives and the content of these projects.

Having concluded that the law does not stipulate a duty to supply this information, and also taking into account that this information, because of its scope, may be and should be shared on a ‘need to know’ basis, it follows that in this part [of the investigation] too there is no evidence of a criminal offence or abuse of office...

When summing up the information gathered in the course of the pre-trial investigation, it has to be stated that all necessary and sufficient measures and possibilities had been exhausted to collect information on any criminal offences committed. However, in the course of the pre-trial investigation no objective data was gathered which would confirm that there had been abuse of office (or another criminal offence) and the totality of the factual information is not sufficient to find that criminal offences were committed. Therefore, at the present time it is not possible to conclude that criminal offences were committed. On the contrary, the hypothetical suppositions which were the basis for the pre-trial investigation [on the charges of abuse of office, Article 228 of the Criminal Code] have not been confirmed, and have been ruled out of evidence. Article 3 § 1 (1) of the Code of Criminal Procedure stipulates that criminal proceedings may not be started, and if they have been started they must be terminated, where there is no indication of a criminal offence or a criminal misdemeanour. Therefore, this pre-trial investigation no. 01-2-00016-10 must be discontinued, because there is nothing to indicate that there has been a criminal offence or misdemeanour.

It has already been concluded that, to summarise the factual information contained in the material of the pre-trial investigation about the cooperation between the SSD and the United States Central Intelligence Agency in Project No. 1 and Project No. 2, no criminal offence has been committed as regards provision of information to the highest officials of the State. However, there is sufficient evidence to find that actions of the former chief executives of the SSD who had coordinated the cooperation between the SSD and the United States Central Intelligence Agency and of those who took part in that cooperation, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, as well as actions of the chief executives of the SSD and its other staff who were in charge of the reconstruction of the premises (Project No. 1 and Project No. 2), who initiated this reconstruction and who carried out this reconstruction, may warrant action for disciplinary offences. However, the former chief executives of the SSD, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, are no longer employed by the SSD and [thus] no disciplinary sanctions may be applied to them. In addition, in accordance with the Statute of the SSD (...), no disciplinary sanction may be applied where more than one year has elapsed from the date of the offence. Therefore, even in cases where there is information which may indicate that a disciplinary offence has been committed, no decision can be made; this is stipulated by the Code of Criminal Procedure, Article 214 § 6. The matter must be transferred to other authorities for examination of a disciplinary offence after the pre-trial investigation is complete...

Taking into account the fact that the material of the pre-trial investigation includes both a State secret and an official secret, all the material of the investigation, after the pre-trial investigation is complete, shall be passed on to the Office of the Prosecutor General of the Republic of Lithuania, the Department of Information Security and the Inspectorate of Operational Activities.”

78. In the light of the above findings and on the basis of Articles 3 § 1 (1), 212 § 1, 214 and 216 of the Code of Criminal Procedure, the prosecutor decided to discontinue the pre-trial investigation
No. 01-2-00016-10, on the ground that nothing had been done which indicated a criminal offence or a criminal misdemeanour.

79. Following the prosecutor’s decision to close the investigation, Reprieve twice wrote to the prosecutor seeking information on Abu Zubaydah’s behalf. On 22 June 2011 Reprieve requested a written copy of the decision to close the investigation, and also asked for information on the rights available to Abu Zubaydah as a victim of the crimes covered by the investigation. On 27 June 2011 Reprieve requested the Prosecutor General to provide the following:

“(1) indicate with reference to provisions of the Criminal Code of the Republic of Lithuania which crimes were investigated within pre-trial investigation
No. 01-2-00016-10;

(2) indicate chronologically all the procedural actions taken during the pre-trial investigation;

(3) state the findings of the investigation with respect to each crime; and

(4) state on what basis the investigation was closed in respect of each of the crimes.”

80. The applicant’s lawyers wrote to the Court that by the date the present application was lodged with the Court the Prosecutor General’s Office had not responded to either letter. When additional flight data came to its notice, Reprieve wrote to the Prosecutor again on 6 October 2011, asking him to submit some details of the flight, to call for specific additional investigative actions, and to request assurances from the prosecutor prior to submitting him additional flight data confidentially.

81. The Prosecutor General announced on 21 October 2011 that he would not reopen the terminated criminal investigation. This decision was taken on the basis that there was no evidence that anyone had been detained in the territory of Lithuania.

82. In May 2011, Amnesty International also wrote to the Prosecutor General, stating that in its view the investigation had failed to thoroughly investigate the allegations of torture, ill-treatment and enforced disappearance, and that information already in the public domain constituted a strong prima facie case for continuation of the investigation: the secret sites had been identified; SSD officials had acknowledged that the sites had been established in order for suspected terrorists to be detained there; both parliamentarians and the European Committee for the Prevention of Torture (“the CPT”) had stated that the physical layout of the sites and the operational dynamic (no inspections of aircraft were conducted and the CIA had ultimate control over the sites) were easily adaptable to a detention regime; at least one aircraft had carried passengers in addition to crew.

83. In June 2011, the Prosecutor General responded to Amnesty International’s letter, characterising it as a “complaint about the termination of the investigation” and stating that the organisation had no right to submit such a complaint, as it was not part of the investigation proceedings, and, with regard to the substance, that after having become familiarised with the letter he did not find a basis for reopening the investigation.

(c) Report of the European Committee for the Prevention of Torture and the Response of the Lithuanian Government

84. On 19 May 2011 the European Committee for the Prevention of Torture released its report to the Lithuanian Government on its visit to Lithuania from 14-18 June 2010[9]. It also released, on the same day, the Lithuanian Government response to the CPT report.

85. When in Lithuania, the CPT delegation had talks with the Chairman of the Seimas Committee on National Security and Defence about the findings of the Committee’s investigation of this matter, and met members of the Prosecutor General’s Office entrusted with the pre-trial investigation which was under way.

86. In its report the CPT acknowledged at the outset that the interrogation techniques applied in the CIA-run overseas detention facilities had certainly led to violations of the prohibition of torture and inhuman or degrading treatment. It was against that backdrop that the CPT delegation examined the question of the alleged existence of secret detention facilities in Lithuania. The central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, for the record, the delegation considered that it should also visit the two tailored facilities identified in the Parliamentary Committee report when referring to partnership cooperation Projects Nos. 1 and 2. On this last point the CPT noted:

“68. The facilities of Project No. 1 consisted of a small, single-storey, detached building located in a residential area in the centre of Vilnius. According to the Parliamentary Committee’s report, “facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners. (...) however, according to the data available to the Committee, the premises were not used for that purpose.”

The facilities of Project No. 2 were located in a small locality situated some 20 kilometres outside Vilnius. Far larger than those previously mentioned, the facilities of this project consisted of two buildings (respectively with a brown and a red roof) which were connected and divided into four distinct sectors. As regards the red-roofed building, the layout of the premises resembled a large metal container enclosed within a surrounding external structure. Two parts of this building (a fitness room and a technical area) contained apparatus, machinery and spare parts of US origin as well as instructions and notices written in English. A Lithuanian official accompanying the delegation said that this equipment and written material had been left behind by the previous occupants. According to the Parliamentary Committee’s report, “the progress of works [to equip these facilities] were ensured by the partners themselves (...). The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2, however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD [State Security Department] staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion”.

The CPT shall refrain from providing a detailed description of the above-mentioned facilities. Suffice it to say that when visited by the delegation, the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.”

87. As concerns the effectiveness of the Lithuanian authorities’ investigation of the question whether CIA secret prisons existed in Lithuania, the CPT noted:

“69. It is axiomatic that the relevant authorities must take resolute action when any information indicative of serious human rights violations emerges. More specifically, an effective investigation, capable of leading to the identification and punishment of anyone responsible for such violations, must be carried out. It is well established through the case-law of the European Court of Human Rights that in order to be considered as “effective”, an investigation must be conducted in a prompt and reasonably expeditious manner, and must be comprehensive and thorough.

70. As already indicated, the allegations of secret detention facilities in Lithuania that surfaced in August 2009 led to the setting up of a Parliamentary investigation in November 2009, the findings of which in turn resulted in the launching of a pre-trial investigation by the Prosecutor General’s Office in January 2010.

It can first be asked whether the Prosecutor General’s Office displayed the necessary promptitude when the reports of secret detention facilities appeared in August 2009. Admittedly, it was a question of allegations made in the media. However, those allegations had to be seen in the context of certain undisputable facts that were by that time in the public domain, namely that the CIA had been holding and questioning, in secret locations overseas, a number of suspected terrorists and that the persons concerned had been subjected to ill-treatment (...). In addition, there was a growing body of evidence, emanating from reports drawn up within the framework of the Council of Europe as well as other bodies, that some of the CIA facilities concerned might have been located in European countries. Against this background, it might be argued that the Prosecutor General’s Office should itself have taken the initiative and launched an investigation when the issue of the possible existence of secret detention facilities in Lithuania first came to light in the summer of 2009.

71. The question also arises whether the pre-trial investigation that was initiated on 22 January 2010 is sufficiently wide in scope to qualify as comprehensive. The investigation relates to a possible abuse of official position as set out in Article 228 § 1 of the Criminal Code. Certainly, the uncovering of evidence indicative of a possible abuse of official position by certain Lithuanian civil servants was an important outcome of the Parliamentary investigation; however, it was not the only outcome.

According to the data collected by the Parliamentary Committee, aircraft which official investigations had linked to the transportation of CIA detainees repeatedly crossed Lithuanian airspace during the period 2002 to 2005 and did land in Lithuania during that period. Further, although the Committee failed to establish whether CIA detainees were brought into/out of Lithuanian territory, it concluded that the conditions for such transportation did exist. The Committee also “established” that the Lithuanian State Security Department had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. And, although reaching the conclusion that the facilities of Project No. 1 were ultimately not used for detention purposes, the Committee explicitly refrained from ruling out such a possibility as regards the facilities of Project No. 2 (see paragraph 68).

When the delegation raised the issue of the scope of the pre-trial investigation with members of the Prosecutor General’s Office, they replied that “facts” were needed to launch a criminal investigation, not “assumptions”; at the same time, they emphasised that if evidence of other criminal acts did come to light during the investigation, its scope could be broadened accordingly.

For its part, the CPT considers that when the above-mentioned findings of the Parliamentary Committee are combined with the other elements identified in paragraph 70, it becomes clear that it would have been more appropriate for the scope of the pre-trial investigation to have expressly covered, as from the outset, the possible unlawful detention of persons (and their possible ill-treatment) on Lithuanian territory.

72. During its meeting with members of the Prosecutor General’s Office, the CPT’s delegation sought to ascertain whether the pre-trial investigation complied with the criterion of thoroughness.

This was followed up after the visit by a written request from the CPT’s President for a chronological account of all steps taken as from the opening of the pre-trial investigation (persons from whom evidence had been taken, whether orally or in writing; documents obtained and examined; on-site inspections carried out; material seized; etc.); information was also sought on whether the assistance of authorities outside Lithuania (in particular of the United States and NATO) had been requested and, if so, whether that assistance had been forthcoming.

The delegation did not receive the specific information it requested, either during the abovementioned meeting or from the Lithuanian authorities’ response of 10 September 2010. The Committee has been told that: persons related to the subject of the investigation who had meaningful information have been questioned; documents that were meaningful to the investigation have been received; the premises designated as Projects Nos. 1 and 2 have been inspected; no obstacles have been encountered in the conduct of the investigation. It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret.

The CPT is not convinced that all the information that could have been provided to the Committee about the conduct of the investigation has been forthcoming. Certainly, given the paucity of the information currently available, it remains an open question whether the pre-trial investigation meets the criterion of thoroughness.

73. The pre-trial investigation has not yet been finalised. According to the Prosecutor General’s Office, the collected data is still being analysed and decisions remain to be made as regards the necessity for additional investigative acts. The prosecutors met hoped that the investigation would be completed by the end of 2010.

Once it has been completed, the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum. This will enable a proper assessment of the overall effectiveness of the investigation to be made and ensure that there is sufficient public scrutiny of its results.

The CPT requests that the findings of the pre-trial investigation be forwarded to the Committee as soon as they become available.

74. Finally, the CPT has been informed that, on 20 September 2010, the UK-based nongovernmental organisation REPRIEVE wrote to the Prosecutor General of Lithuania on the subject of a named person who is currently being held by the US authorities in the detention facilities at Guantánamo Bay. The organisation affirms that it has received information from “the most credible sources inside the United States” that this person “was held in a secret CIA prison in Lithuania” during the period 2004 to 2006, and requests that this matter be investigated.

The CPT would like to be informed of the action taken by the Prosecutor General’s Office in the light of the above-mentioned letter.”

88. In their response to the report by the CPT, the Government in essence summed up the prosecutor’s conclusion of 14 January 2011 (paragraphs 72-78 above).

6. Latest events - a follow-up by the European Parliament

89. On 11 September 2012 the European Parliament adopted another resolution on the CIA’s secret rendition[10]. Having considered the follow-up report on alleged transportation and illegal detention of prisoners in European countries by the CIA, the European parliament held as follows:

“(...) whereas the Lithuanian authorities have endeavoured to shed light on Lithuania’s involvement in the CIA programme by carrying out parliamentary and judicial inquiries;

whereas the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the CIA on Lithuanian territory established that five CIA-related aircraft landed in Lithuania between 2003 and 2005 and that two tailored facilities suitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were prepared at the request of the CIA;

whereas the [European Parliament’s] delegation thanks the Lithuanian authorities for welcoming Members of the European Parliament to Vilnius in April 2012 and allowing the delegation access to Project No. 2; whereas the layout of the buildings and installations inside appears to be compatible with the detention of prisoners; whereas many questions relating to CIA operations in Lithuania remain open despite the subsequent judicial investigation conducted in 2010 and closed in January 2011; whereas the Lithuanian authorities have expressed their readiness to re-launch investigations if other new information were to come to light, and whereas the Prosecutor’s Office has offered to provide further information on the criminal investigation in response to a written request from Parliament (...).

14. Notes that the parliamentary and judicial inquiries that took place in Lithuania between 2009 and 2011 were not able to demonstrate that detainees had been secretly held in Lithuania; calls on the Lithuanian authorities to honour their commitment to reopen the criminal investigation into Lithuania’s involvement in the CIA programme if new information should come to light, in view of new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and Lithuania; notes that analysis of the Eurocontrol data also reveals new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006; considers it essential that the scope of new investigations cover, beyond abuses of power by state officials, possible unlawful detention and ill-treatment of persons on Lithuanian territory; encourages the Prosecutor-General’s Office to substantiate with documentation the affirmations made during the LIBE delegation’s visit that the ‘categorical’ conclusions of the judicial inquiry are that ‘no detainees have been detained in the facilities of Projects No. 1 and No. 2 in Lithuania.”

COMPLAINTS

90. At the outset the applicant’s lawyers observed that this case presents what are perhaps unprecedented levels of difficulty for Abu Zubaydah to gain access to evidence related to his rendition in and out of Lithuania and to present them to the Court. That being so, they relied on the Court’s
case-law to the effect that Convention proceedings “do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation)”, because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations (see Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005-X (extracts)). In some cases the Court has found the violations proved beyond a reasonable doubt based on the “coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact” (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 182-184, ECHR 2009). Furthermore, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of ill-treatment occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

91. In the applicant’s case, his complaints were based on evidence which was entirely in the hands of the two governments involved, those of Lithuania and the United States. A policy of secrecy and concealment has been in operation at the highest levels of government in both Lithuania and the United States with respect to the rendition programme in general and Abu Zubaydah’s detention in Lithuania in particular. The official investigation by the Lithuanian authorities was cursory and unsatisfactory, and Abu Zubaydah’s representatives have not been allowed access to the case file. Further, throughout this period he was detained incommunicado, and was not allowed to see a doctor or anyone else, which posed further difficulties in supporting his claims of torture and secret detention. Finally, all this was uniquely compounded by his inability to present his own evidence, due to the restrictions imposed by the United States authorities on the sharing of any information communicated by him with the outside world, including with the Court. It is against this exceptional background that Abu Zubaydah’s lawyers asked the Court to consider his complaints, which were as follows.

92. Relying on Article 3 of the Convention, the applicant’s lawyers complained that the egregious nature and the total experience of the rendition process itself amounted to a violation of his rights under the above provision. Whilst not being able to present direct evidence of his treatment inside the secret detention facility in Lithuania, they noted that in addition to inferences flowing from his prior documented history of torture at the hands of the CIA, reasonable inferences could also be drawn from detention and interrogation techniques that were authorised and employed by the CIA at the time of his captivity on Lithuanian territory. For the applicant’s lawyers, the cumulative effect of specific forms of torture and ill-treatment that were imposed through the conditions of detention, interrogation and transfer amounted to a violation of torture prohibition. The Lithuanian authorities, despite having knowledge of the CIA rendition programme and the methods it used, provided the CIA with a secret detention site, instead of taking all necessary steps to prevent violations of Article 3 in respect of Abu Zubaydah, who was being held in Lithuanian territory and under Lithuanian jurisdiction.

93. The applicant’s lawyers also complained that the Lithuanian authorities should have been aware that his removal from Lithuanian territory to another CIA secret detention facility and, subsequently, to Guantánamo Bay, exposed him to a real risk of being subjected to treatment contrary to Article 3. However, Lithuania not only did not intervene to prevent his removal, but actively assisted the US agents to conduct the unlawful transfer, by providing landing rights and removing normal procedures for customs and border guard inspection of the aircraft and other checks on the movement of passengers and cargo.

94. The applicant’s lawyers also complained that although Abu Zubaydah was detained in Lithuania for over a year, his detention was not acknowledged, and no official trace of it existed in the public domain at this stage. Prolonged arbitrary detention and lack of any safeguards contained in Article 5 of the Convention were acutely at issue in this case. Throughout his period of detention on Lithuanian territory, Abu Zubaydah was not allowed contact with a lawyer, nor was he brought before a court or allowed to challenge the lawfulness of his detention, and he was not informed of the reasons or even the whereabouts of his detention, in violation of Article 5 §§ 1, 2, 3, 4 and 5 of the Convention. In this context it also had to be noted that Lithuania’s role in the applicant’s arbitrary detention had been a crucial one, because without the active cooperation of Lithuania when providing the CIA with a secret prison, Abu Zubaydah’s confinement on Lithuanian territory would not have happened. Critically, those detained on Lithuanian territory were entitled to protection under Lithuanian law, yet this was denied to them by the authorities. Lithuania failed to comply with its positive obligation to provide oversight and inspect the CIA detention facility in order to prevent arbitrary detention. However, through agreements with the CIA, and through acts and omissions, Lithuania enabled Abu Zubaydah to be held in a system of secret detention, in violation of the panoply of rights guaranteed by Article 5 of the Convention.

Lastly, similarly to the complaint under Article 3 of the Convention, the applicant’s lawyers maintained that by providing conditions for executing the removal of Abu Zubaydah from its territory, Lithuania had enabled foreign agents to carry out an unlawful transfer to facilitate further unlawful detention of the applicant at other locations, in which he continues to be denied an effective remedy to challenge his detention.

95. The applicant’s lawyers also observed that while in detention in Lithuania Abu Zubaydah was not permitted any contact with his family, nor was he allowed to establish contact with a lawyer. While the applicant could not present evidence that he had requested visits or to correspond with his family or with a lawyer when in Lithuania, secret detention designed to remove the person from all contact with and support from outside world was clearly against the spirit and the letter of Article 8 of the Convention. On this point it was also noted that the Lithuanian legal provisions concerning detention do not allow an absolute ban on contact with close relatives or with a lawyer. On the contrary, they provide for protection of such rights as access to relatives, lawyers and the diplomatic and consular institutions of the country of the detained person.

In addition, the systemic recording of Abu Zubaydah, including when he was in his cell, was in plain interference with his right to private life. Coupled with the information that he was participating in an experiment, this measure exacerbated the psychological impact of his ill-treatment in detention, and deprived him of his private space, constituting a most serious interference with his private life, which had no plausible justification and constituted a separate violation of Article 8 of the Convention.

96. Lastly, the applicant’s lawyers complained that Lithuania had violated, and continues to violate, Abu Zubaydah’s rights under
Articles 3, 5 and 8, as well as his right to an effective remedy under Article 13 of the Convention, by failing to conduct an effective investigation of his enforced disappearance, secret detention, torture and ill-treatment. They argued, firstly, that in the context in which allegations of Lithuanian “black sites” had already surfaced in August 2009, and the specificity of the information concerning renditions and the locations of those sites, the Prosecutor General should have taken resolute action and launched an investigation immediately. Only such an approach would have been consistent with the requirement of promptness, long recognised by the Court, to the effect that the State must open an investigation of its own motion as soon as the authorities become aware of any “credible assertion” or “arguable claim” that an individual had suffered treatment contrary to Article 3 at the hands of State agents.

97. Secondly, the investigation was plagued by a lack of independence and impartiality. When the Prosecutor General eventually opened his investigation in January 2010, he limited its scope to the questions defined by the Conclusions of the Seimas CNSD report, rather than launching an independent investigation. Furthermore, the Seimas inquiry being a political one, the prosecutor did not need to wait for the CSND report before opening a pre-trial investigation on criminal charges.

98. Thirdly, the pre-trial investigation was not thorough, wide-ranging and rigorous, involving a serious attempt to uncover all relevant facts and identify those responsible. The prosecutor failed to follow all reasonable leads to uncover rendition operations, although numerous critical lines of inquiry were suggested to him by Reprieve and Amnesty International before the investigation was terminated. The applicant’s lawyers believed that the prosecutor had failed to seek or obtain evidence from any other prosecutor in Europe or the United States, despite the fact that numerous countries have previous or ongoing investigations into CIA-led rendition and interrogation. The prosecutor also failed to obtain evidence from the Council of Europe, Eurocontrol and NATO, each of which could have been holding information vital to the investigation. One such telling example of the inadequacy of the investigation was the February 2005 flight of N724CL to Vilnius from Morocco, which was uncovered by Reprieve and yet not explored or disclosed, either by the parliamentary inquiry or the prosecutor. Furthermore, although considerable information was uncovered by the Seimas CNSD inquiry into rendition operations and the cover-up of those operations, the prosecutor closed the investigation without explaining how the evidence was not consistent with renditions. Above all, although the Seimas CNSD in fact acknowledged that Dainius Dabašinskas, Deputy Director of the SSD, enabled both the Lithuanian border to be crossed without checks and items to be brought in and out, the prosecutor failed to determine who had been rendered into Lithuania. For the applicant’s lawyers, the ineffectiveness of the pre-trial investigation was further compounded by the fact that, despite the gravity of the crimes at stake, the prosecutor made no attempt to interview Abu Zubaydah. Nor was there any indication that other victims had been questioned. Lastly, the prosecutor refused to provide information on the progress and results of the investigation to Abu Zubaydah, whom he failed to recognise as a victim, and to the public, claiming that it constituted a State secret. In sum, rather than pursuing and exposing key facts about Lithuania’s role in the rendition, detention and interrogation programme, the prosecutor instead considered this the responsibility of the media and non-governmental organisations.

QUESTIONS TO THE PARTIES

1. Has the applicant ever been the object of secret rendition by agents of the United States Central Intelligence Agency into and/or from the Republic of Lithuania? If so, can the respondent State be held responsible?

2. Assuming that the applicant was detained in Lithuania, and in the light of the applicant’s submissions and material produced by him, was the applicant’s detention “in accordance with a procedure prescribed by law”? In view of the applicant’s allegations, can the respondent State be held responsible for his abduction and forcible disappearance? Consequently, was he deprived of his liberty in breach of Article 5 of the Convention?

3. In the light of the applicant’s allegations under Article 3 of the Convention and the materials which have been submitted:

a) was the applicant subjected to treatment contrary to Article 3 of the Convention by agents of the United States Central Intelligence Agency and/or agents of the Republic of Lithuania while he was in Lithuanian territory and jurisdiction?

b) given the available information at the relevant time, was the respondent State aware that the applicant faced a real risk of being subjected to torture or inhuman or degrading treatment if transferred to CIA-run facilities or Guantánamo Bay from Lithuania? If so, can the respondent State be held responsible?

c) Having regard to the procedural protection from torture and inhuman or degrading treatment (Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV) provided by Article 3, has there been an effective official investigation in the present case, as required under Article 3 of the Convention? In this respect the Government are requested to describe in a detailed manner the course of the investigation, procedural and other decisions taken, namely:

i) what steps have been taken:

- to establish the purpose of the landing of the CIA-linked aircraft which the Lithuanian Seimas’ Committee on National Security and Defence and the prosecutor mentioned in their report and decision (see “the Facts”)?

- to determine the identity of the passengers who had boarded or disembarked from those aircraft?

- to uncover the truth as regards the applicant’s time in the CIA secret prison in Lithuania (Projects No. 1 and 2)?

ii) what other investigative measures have been taken in respect of the applicant’s complaint during the official investigation?

4. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary within the meaning of Article 8 § 2?

5. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

6. Did the applicant exhaust the domestic remedies as regards his complaints under Articles 3, 5 and 8 of the Convention?

REQUEST FOR DOCUMENTS

The Lithuanian Government are requested to take all reasonable measures to obtain, via diplomatic channels, a certified copy of the authority form which the applicant has signed in favour of his United States lawyer, Joseph Margulies.

The applicant’s lawyers Mr S. Kostas, Ms V. Vandova, Ms H. Duffy, Mr G.B. Mickum and Ms A. Jacobsen are requested to provide the Court with the Court’s standard authority form, signed by the applicant.

[1] In the application to the Court, the applicant’s lawyers extensively referred, as the main source of evidence of the facts, to reports by the Lithuanian and the United States Governments. They have also made numerous references to reports by international organisations and articles in printed and internet media.

[2] Council of Europe, “Report by the Secretary General under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts”, SG/Inf (2006) 5, 28 February 2006.

[3]Council of Europe, Committee on Legal Affairs and Human Rights, “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states”, Doc. 10957, 12 June 2006. 

[4] European Parliament, “European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, adopted midway through the work of the Temporary Committee (2006/2027(INI))”, P6_TA(2006)0316.

[5] European Parliament, “Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200 (INI))”, doc. A6-0020/2007.

[6] Ibid.

[7] Europos parlamentas, “Darbo dokumentas Nr. 8 dėl su CŽV susijusių įmonių, CŽV naudotų orlaivių ir Europos šalių, kuriose leidosi CŽV orlaiviai”, 16 November 2011.

[8] Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)).

[9] Council of Europe, the European Committee for the Prevention of Torture, “Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment“, CPT/Inf (2011) 17, 19 May 2011.

[10] European Parliament, “Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee report (2012/2033(INI))”, A7-0266/2012, 2 August 2012.

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