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ECtHR Hearings - Abu Zubaydah v Lithuania rendition case
Note of the Hearings on 28 and 29 June 2016 at the ECtHR, Abu Zubaydah v Lithuania rendition case (no. 46454/11)

The Fact Finding hearing

The court decided to hold a rare fact-finding hearing in this case and requested the presence of three expert witnesses with a background in investigating the CIA’s rendition programme. The court determined that these witnesses should not be identified by name, though their testimony could be referred to publicly by identifying them as Witnesses 1, 2, and 3.

As our submissions set out at the public session the day after explained, the witnesses confirmed that—consistent with a cyclical pattern of sudden site closures—Lithuania ‘undoubtedly’ set up a secret detention site in 2005, following the closure of a site in Morocco. They explained why Lithuania was clearly Site Violet, the site identified in the US Senate report as having detained CIA prisoners from early 2005. Lithuania became (as witness 2 coined it), ‘the hub’ for detention of high value detainees by January 2006. The witnesses confirmed and explained their consistent assessments that Abu Zubaydah was among those detained in Lithuania. Witness 1 noted that if one takes the trouble to reconstruct the story, one “can only come to that conclusion”; Witness 2’s work had “definitively associated” Abu Zubaydah with Lithuania; and Witness 3 found that the detention of Abu Zubaydah in Lithuania was “beyond reasonable doubt”.

The second purpose of the fact finding hearing was to hear parties’ submission on the Government’s request to keep confidential all documents submitted by them to the Court in support of their submissions. HRP argued on behalf of the applicants that confidentiality could not be justified: documents before the court are in principle public and any restriction is exceptional and must be strictly justified by the Government according to established grounds, and for each piece of specific information as opposed to a large category of documents. Nor could the Government discharge the onus of justification, which rests with them, by simply citing national law and procedure, national security or ‘investigative secrecy’ in a general way. Moreover, much of the information provided was: a) already in the public domain; and b) already presented in such an abbreviated, summary or redacted form as to have presumably already removed information considered necessary to protect. Finally, we argued the importance of this information to the applicant’s case. Despite the Government’s conclusions that it ‘eliminated all doubt’ to the effect that there was no prison in Lithuania, this is not borne out by even the limited and insufficient information on the investigative file.

We have requested that a transcript of the fact-finding hearing be made available publicly.

The Public hearing

The Lithuanian Vice-Minister of Justice and the Prosector-General spoke first on behalf of the Government, followed by Helen Duffy of Human Rights in Practice on behalf of the applicant.

The representatives of the Lithuanian Government submitted that they did not deny that Mr Abu Zubaydah was an extraordinary rendition and torture victim. However it continued to deny any role or responsibility on the part of Lithuania. They denied that there was any evidence that the flights were rendition flights, that the secret site set up for the CIA was a detention site, or that he was present in Lithuanian territory and subsequently transferred on to Guantánamo Bay.

The representatives also submitted that the pre-trial investigation by the Prosecutor in 2010 into Mr Zubaydah’s allegations of secret detention and torture on Lithuanian soil was prompt, thorough, and effective, but closed because no evidence came to light to substantiate the allegations. They added that the applicants’ claim before the Court was premature due to an ongoing domestic investigation ‘reopened’ in light of new information that surfaced from the Senate Select Committee on Intelligence (SSCI) Report.

On the other hand, the applicants’ representative argued that the evidence establishes that Lithuania housed a black (secret detention) site) to which the applicant was rendered in February 2005, and out of which he was rendered to further CIA detention in Afghanistan, and ultimately on to Guantánamo Bay, in 2006. Given the nature of the case, and undoubted evidentiary challenges associated with it, the evidence had to be drawn from myriad sources and considered as a whole. The evidence referred to included: witness testimony from the fact-finding session; the US Senate report’s categorical findings as to detention Site Violet; evidence of rendition flights landing in Lithuania from flight data, aviation control, contracts and invoices; information collected by the Lithuanian Parliament’s Committee on National Security and Defence (“CNSD” or Seimas report) and the Prosecutor’s own file on high-level approval and the modus operandi of the secret sites set up by Lithuanian authorities for the CIA; the applicant’s movements prior to and after Lithuania, which linked directly with the rendition flight routes and dates and the date of operation of the Lithuanian black site; and statements and findings of multiple enquiries on the regional and international level, and the work of NGOs, journalists, and investigators.

The applicant’s representative argued that the facts of the case and nature of allegations condition the court’s approach to evidence and proof. The evidence more than meets the relevant standard of prima facie evidence, and creates, at a minimum, strong and concordant inferences of fact as to secret detention of the applicant on Lithuanian soil. The burden of proof rests with the authorities to provide a satisfactory and convincing explanation, which they have failed to do, engaging instead in denial and obfuscation.

It was ‘beyond plausible deniability’ that when Lithuania set up this last European black site, by 2005/2006, it knew or should have known of the risk of violations on its territory, and the risk of further violations arising from transfer to future black site detention. This was clear from publicly available information as well as specific knowledge imparted to the Government. Contrary to its obligation to take all possible measures to prevent and protect, evidence shows that it failed to exercise due diligence to prevent, monitor or even enquire; instead it actively supported and enabled: agreeing to, purchasing and helping equip the CIA secret sites; providing vital logistics and support at the site; ensuring that normal oversight of CIA flights was lifted and neither CIA planes, passengers, nor cargo were monitored or inspected.

It was submitted that the pre-trial investigation conducted by the Prosecutor was neither prompt, thorough, effective, nor independent or transparent as required by the Convention. Eleven years since his detention in Lithuania, basic investigative steps had still not been taken. The 2010 investigation has been consistently criticised as cursory and ineffective, and quickly closed in 2011. Then for four years nothing happened despite the Prosecutor receiving many calls for reopening the investigation and being alerted to further evidence. Despite purported reopening of the investigation in the face of pressure from the Senate Committee report, No information had been provided to suggest a meaningful investigation as opposed to a chimera to avoid the judgment of this Court. The lack of progress was consistent with the lack of political will, expressed by the PM in 2010.

It was finally argued that Mr Abu Zubaydah did not have an effective remedy which in a case such as this must not only involve criminal investigation and accountability, but also victim recognition, truth, efforts at cession of the on-going flagrant denial of justice in his case and guarantees of non-repetition.

Oral submissions on behalf of the applicant can be seen here.