(Mar. 4, 2013) On December 13, 2012, the Grand Chamber of the European Court of Human Rights (ECHR) issued a final judgment in a case involving a German national of Lebanese origin, who was arrested by authorities of the Former Yugoslav Republic of Macedonia (FYROM) acting on suspicion of his having ties with terrorist organizations, under the so-called rendition program organized by the U.S. Central Intelligence Agency. Khaled El-Masri, the applicant, won the case and was awarded €60,000 (about US$79,000) for non-pecuniary damage. (Case of El-Masri v. The Former Yugoslav Republic of Macedonia, Eur. Ct. H.R. (Dec. 13, 2012), HUDOC.)
Background
El-Masri was arrested while crossing the border of the FYROM and kept incommunicado for 23 days in Skopje, where he was questioned. Subsequently, the applicant was transferred to the airport, where he was beaten and tortured, blindfolded and taken by force to an airplane, and then transferred to Kabul, Afghanistan. He was imprisoned for four months and tortured, allegedly by CIA agents. He resorted to hunger strikes twice, and he was forced to eat. He was later flown to Albania and eventually returned to Germany. Upon his return, he filed several lawsuits over being unlawfully detained, held without charge, and tortured. (Press Release, Registrar of the Court, ECHR, Macedonian Government Responsible for Torture, Ill-Treatment and Secret Rendition of a Man Suspected of Terrorist Ties (Dec. 13, 2012), at 1-2 [click on the link to open document].)
The Munich public prosecutor issued arrests warrants against several CIA agents for being involved in the detention and torture of El-Masri. A parliamentary inquiry undertaken in Germany to investigate the CIA’s involvement in the case, in its report published in 2009, concluded that his report of detention in the FYROM and Afghanistan was credible. (Id. at 3.)
In the United States, the American Civil Liberties Union filed a claim on behalf of El-Masri against the former CIA Director and unnamed CIA agents for being involved in the case. That case was dismissed, and the U.S. Supreme Court refused to review it, citing the position that the U.S. interest in preserving state secrets outweighs the individual’s right to seek and receive justice. Similarly, El-Masri’s efforts to bring a criminal suit against law enforcement officials in the FYROM was also dismissed. (Id. at 2.)
During the period 2006-2007, several European states began investigating allegations that CIA operatives were involved in extraordinary rendition cases involving individuals who were transferred to secret places and tortured, including the El-Masri case. An in-depth investigation, undertaken by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe under the leadership of Dick Marty, concluded that the El-Masri case was a case of “documented rendition” and that the FYROM’s government account of events was “utterly untenable.” (Id.at 3.) The report’s findings were based on evidence from aviation logs that on the day that El-Masri was taken from Scopje to Afghanistan, an airplane registered under the U.S. Federal Aviation Administration left from Scopje bound for Afghanistan. El-Masri’s return to Albania was also confirmed based on aviation data. (Id.)
Proceedings Before the ECHR
El-Masri based his application on several articles of the European Convention of Human Rights and claimed that his rights were violated. The provisions of the Convention he mentioned included article 3, (inhuman and degrading treatment), article 5 (right to liberty and security), article 8 (violation of the right to respect for private and family life), and article 13 (denial of a right to an effective remedy). (Case of El-Masri v. The Former Yugoslav Republic of Macedonia, supra; European Convention on Human Rights (as amended to June 1, 2010), Council of Europe website.)
The ECHR held that the facts of the case were sufficiently convincing and established beyond any reasonable doubt that El-Masri was tortured and that the government of the FYROM failed to prove its version of events. Based on article 3 of the Convention, the ECHR found against the FYROM, citing El-Masri’s incommunicado detention in the hotel in Skopje, which amounted to inhuman and degrading treatment. The Court also found that his subjection to torture at the hands of the CIA agents at the Skopje airport and in front of officials of the FYROM was also in violation of article 3. (Case of El-Masri v. The Former Yugoslav Republic of Macedonia, supra.)
Based on article 5 of the Convention, the ECHR held that the FYROM was responsible for infringing on El-Masri’s rights due to the lack of a court order for his detention and the absence of custody records. The Court also concluded that the FYROM had violated the applicant’s right to private and family life and his right to an effective remedy in the absence of any effective investigation of his complaints. (Id.)