In a long-awaited decision on the secret detention, torture, and rendition of a suspected terrorist by a Council of Europe member state, the Grand Chamber of the European Court of Human Rights has found that the Former Yugoslav Republic of Macedonia ("FYROM") violated several provisions of the European Convention on Human Rights - including Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life), and Article 13 (right to an effective remedy) - when it detained, ill-treated, and subsequently subjected the applicant to an extraordinary rendition operation.
The applicant, a German national, alleged that he was subjected to a secret rendition operation that commenced when FYROM custom patrol took him into custody, detained him incommunicado in a hotel for almost a month, subjected him there to ill treatment, then handed him over to U.S. Central Intelligence Agency ("CIA") agents at the Skopje airport, where he was tortured, then put on a flight to Afghanistan, and subsequently detained and subjected to treatment contrary to Article 3 of the Convention for over four months. The government of FYROM denied the applicant's allegations.
The Court first had to address the fact that the applicant filed his criminal complaint in 2008, four and a half years after he was released, which, according to the respondent government, was clearly beyond the six-month filing requirement provided in the Convention. The Court disagreed, finding that the time between the applicant's release and his criminal complaint was not excessive "given the complexity of the case and the nature of the alleged human rights violations," including the difficulty to compile evidence about a "secret" operation.
The second issue the Court had to address was the conflicting account of events and the mostly circumstantial evidence provided by the applicant and vehemently denied by the respondent government. The Court noted that when the respondent party has "exclusive knowledge" about relevant events, "as in the case of persons under [government] control in custody," there is a "strong presumption . . . in respect of injuries and death occurring during that detention." In other words, "[t]he burden of proof in such a case may be regarded as resting on authorities to provide a satisfactory and convincing explanation." Conversely, "[i]n the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government."
Reviewing the evidence, the Court concluded that the applicant's description of the events and his alleged ordeal "was very detailed, specific and consistent throughout the whole period" and was supported "by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities." The Court specifically noted the relevant aviation and flight logs confirming the flights from Skopje to Afghanistan and later from Afghanistan to Albania, scientific testing of the applicant's hair follicles that confirmed his presence in a South Asian country and his food deprivation, geological records that corroborated the applicant's description of an earthquake in Afghanistan, and the applicant's accurate sketches of the Afghan detention site. The Court thus concluded that "there is prima facie evidence in favour of the applicant's version of events and that the burden of proof" lied with the respondent government, which was unable to "demonstrate conclusively why the above evidence cannot serve to corroborate the [applicant's] allegations."
The Court went on to discuss in detail the applicant's individual claims, concluding that the respondent government failed to fulfill its positive and negative obligations. The Court order FYROM to pay the applicant 60,000 Euros for his suffering.
- For more information about this and other cases before the European Court on the allegedly illegal acts committed by European countries in connection with the U.S. extraordinary rendition program, see Alka PRADHAN, « Outside the United States, Extraordinary Rendition on Trial », ASIL Insight, Volume 15, Issue 29, November 2, 2011.
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