The European Court of Human Rights (ECtHR) has declared that the Polish authorities violated human rights as far back as 2002 by allowing the CIA to hold two prisoners on the country’s territory. In the cases of Al Nashiri v Poland and Husayn (Abu Zubaydah) v Poland, the applicants alleged that they were held at a CIA “black site” in Poland and subjected to torture, ill-treatment and illegal detention and transfers. The applicants made complaints in relation to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and Poland’s failure to conduct an effective investigation into those events.
The Court found that in both cases there had been violations of: article 3 (prohibition of torture and inhuman and degrading treatment); article 5 (right to liberty and security); article 8 (right to respect for private and family life); article 13 (right to an effective remedy); and article 6.1 (right to a fair trial). The Court also found additional violations in Mr Al Nashiri’s case, holding that there had been a violation of articles 2 (right to life) and 3 of the Convention taken together with Article 1 of Protocol 6 (abolition of the death penalty).
Al Nashiri, a Saudi Arabian national currently detained in Guantanamo, was represented by three lawyers from the Open Society Justice Initiative, New York. Abu Zubaydah, a stateless Palestinian also detained in Guantanamo, was represented among others by three lawyers of the NGO Interights (which ceased operations last May). The Court granted leave for Amnesty International and the International Commission of Jurists to jointly submit written comments as third parties, in both cases. In the case of Al Nashiri v Poland, the Helsinki Foundation for Human Rights was granted leave to submit written comments as a third party; the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism also submitted comments as a third party.
The participation of these organisations was even more important given the reluctance of the Polish government to provide the Court with information and evidence. The Court found a violation of article 38 of the Convention in view of the Polish Government’s refusal to submit evidence and comply with the Court’s requests. In order to establish the facts of the case the Court based its examination on documentary evidence which had mostly been supplied by the applicant and, to some extent, supplemented by the Government, the observations of parties, material available in the public domain and the testimony of experts and a witness which gave oral evidence before the Court and the fact-finding hearing. The applicants and third-party interveners submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment in US-run detention facilities in Guantánamo and Afghanistan. The Court examined information available in the public domain which had not been contested, negated or corrected by either of the parties. They included reports from Amnesty International, Human Rights Watch, International Helsinki Foundation Federation for Human Rights, International Committee of the Red Cross and work from the Council of Europe and the United Nations.
The case shows the importance of the work of NGOs in vindicating the rights of victims of grave human rights abuses. Rights organisations were essential to justice whether directly, through legal representation, or with third party submissions, or indirectly as a source of evidence for the Court and raising public awareness.
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