abu zubaydah v. lithuania

8/13/2019 Abu Zubaydah v. Lithuania

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2 ABU ZUBAYDAH v. LITHUANIA STATEMENT OF FACTS AND QUESTIONS

information or evidence directly from the applicant or in relation to theclient. Only US counsel with Top Secret security clearance may have accessto the client, and all information obtained from the client is presumptivelyclassified, so that counsel are not able to disclose to other members of thelegal team or to the Court any information obtained from the client or other

classified sources. A request for release of an affidavit from Abu Zubaydahis pending in this case, but, as is routinely the case, this request will involvethe 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 andwritings by the applicant during his period of detention and torture have

been unsuccessful. The applicant s lawyers thus described Abu Zubaydah asa man deprived of his voice, barred from communicating with the outsideworld or with this Court and from presenting evidence in support of hiscase. His story was therefore to be told by reference principally to publiclyavailable documentation1.

1. The applicant

s version of events as to his capture, detention andrendition to Lithuania

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

4. Prior to his rendition to Lithuania, the CIA held Abu Zubaydah insecret detention facilities in four countries on four continents: aftercapturing 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 on4 December 2002, and on 22 September 2003 to a secret CIA facility atGuantnamo Bay. It is reported that in Spring 2004, in anticipation of theUS Supreme Court granting Guantnamo detainees the right to legalcounsel and habeas corpus review of their detention in a US federal court,he was again secretly transferred, this time to a facility in Morocco, wherehe was detained secretly for almost a year.

5. In July 2011, the Associated P ress reported that according to twoformer US intelligence officials Abu Zubaydah was held in a secret prisonin Lithuania. Another press report indicated that his detention in Lithuaniafollowed his detention in Morocco. On the basis of flight information

obtained from flight control agencies pursuant to a freedom of informationrequest by non-governmental organisations Access Info Europe, Reprieveand INTERIGHTS, the applicant s lawyers believed that Abu Zubaydahwas 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 whichthey had provided to the Court, the applicant s lawyers submitted that

planes were contracted by the CIA to perform rendition flights starting in

1 In the application to the Court, the applicants lawyers extensively referred, as the main source ofevidence of the facts, to reports by the Lithuanian and the United States Governments. They have alsomade numerous references to reports by international organisations and articles in printed and internetmedia.


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ABU ZUBAYDAH v. LITHUANIA STATEMENT OF FACTS AND QUESTIONS 3

February 2005. On 15-19 February 2005, two planes with the registrationnumbers N787WH and N724CL, at the behest of Computer ScienceCorporation, travelled from the USA to Lithuania via Morocco and back tothe 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 theAzores, Portugal. On 17 February that aircraft headed to Malaga, Spain,arriving in Rabat, Morocco, in the early hours of the following day. Aftertwo hours in Morocco it proceeded to Romania. The aircraft left Romania inthe afternoon of 18 February and arrived in Palanga, Lithuania, at 6.09 p.m.

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

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

8. On the basis of the data from the Federal Aviation Authority andEurocontrol the applicant s lawyers also submitted that another aircraft,which they linked to the CIA, registered as N724CL, flew from the UnitedStates via the Azores, and the Canary Islands (Spain). The plane arrived inRabat 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. thesame day. After 90 minutes it left Vilnius for Iceland and then returned tothe United States via Canada.

The applicant s lawyers noted that the presence in Lithuania of N724CLwas not mentioned by the Lithuanian parliamentary inquiry.

9. On the basis of the above flight plans, of which they gave details inthe application to the Court, the applicant s lawyers argued that from17 February 2005 Abu Zubaydah was held in Lithuania in a secret detentionfacility constructed and equipped specifically for CIA detention, inaccordance 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 737with the registration number N733MA landed in Palanga airport from Porto,Portugal. After 90 minutes in Palanga, the aircraft left Lithuanian territoryfor Cairo, Egypt. The plane had been chartered by Computer SciencesCorporation and was operated by Miami Air International, Florida.

11. In their letter of 10 September 2012 the applicant s lawyers noted afinding during the Lithuanian parliament inquiry to the effect that aBoeing 737 with the registration number N733MA arrived in Palanga on25 March 2006. No further information about it was provided by theParliamentary investigators, other than that no customs inspection wascarried out and the border guard provided no records of the landing andinspection of this aircraft.


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12. The applicant s lawyers submitted that after Abu Zubaydah wastransferred by extraordinary rendition from Lithuanian territory he wasdetained in an undisclosed facility in a third country, from where he waslater transferred to United States custody at Camp 7 at the US naval base atGuantnamo 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 thelawfulness of his detention.

2. The applicant s treatment during rendition and secret detention

13. The applicant s lawyers noted that there were no publicly availablegovernment documents specifically detailing his treatment during hisdetention in Lithuania, unlike as regards previous periods of AbuZubaydah 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 theCIA Office of Inspector General had investigated and reported onunauthorised abusive treatment of detainees in CIA custody. Moreover,Lithuania s role in the CIA programme was first publicly reported morethan 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 towhich they subjected Abu Zubaydah during his detention in Lithuania.Also, restrictions imposed by the United States currently preclude any directevidence 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 ofthis application, but they were still awaiting a response from the variousdeclassification agencies.

14. Despite these challenges and impediments to having access to and presenting evidence, the applicant s lawyers maintained that clearinferences could be drawn from certain categories of evidence that wereavailable to the Court (the references to that evidence are given in

paragraphs 63-83 of the application). The first category related toinformation concerning the treatment of the applicant at the hands of thesame principal custodians, before and after his period of detention inLithuania. 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 continuedwhile he was detained in Lithuania. This inference was further supported bythe second category of available information that related to the regime ofdetention conditions and interrogation techniques that were authorised foruse on CIA detainees such as Abu Zubaydah during the period of hisdetention 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 theauthorisation and nature of Abu Zubaydah s interrogation, in large part

because the CIA s enhanced interrogation programme was first used and


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tested on Abu Zubaydah, and the conditions of his detention, interrogationand torture represented a significant shift in United States policy. Thelawyers provided the Court with references to publicly available documentswhich, in their view, showed a systematic approach to rendition, detentionand 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, intheir view, showed that a systematic regime of abuse was in place duringthe period of his detention in Lithuania.

16. The lawyers for the applicant submitted that after Abu Zubaydah scapture the CIA proceeded to test a number of coercive techniques on him

by way of experiment. Only weeks before these experiments on AbuZubaydah began, the United States Deputy Defence Secretary PaulWolfowitz issued a directive removing the requirement that treatment ofdetainees 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 ...anexperiment. A guinea pig. I m sure you ve heard that a lot. There weremany enhanced interrogation [methods] tested on him that were neverdiscussed before we settled on the ten [techniques]. After months oftorture, the United States Department of Justice Office of Legal Counselissued a memorandum on 1 August 2002 authorising the CIA s use of tenidentified enhanced interrogation techniques on Abu Zubaydah, and

provided general guidelines for determining the lawfulness of additionalenhanced interrogation techniques.

17. The applicant s lawyers also relied on the CIA s Inspector GeneralReport and a report by the United States Senate Armed Services Committee,among other official and publicly available United States Governmentdocuments, which specified in some detail the nature and effect of historture and ill-treatment. The applicant s lawyers submitted that the CIAinterrogators, among other things: chained Abu Zubaydah to a chair for a

period of weeks; slammed him by the neck into concrete walls; forced himinto a small black box for two hours and in a somewhat larger black box forup to eighteen hours; hung him naked from the ceiling; and kept him awakefor eleven consecutive days, spraying him with cold water if he fell asleep;

blasted rock music at him at top volume; stripped him naked; made hisroom so cold that he turned blue; denied him pain medication for his

injuries; subjected him to waterboarding simulated drowning, doing soeighty-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 ofwaterboarding and while he was sleeping in his cell. Reports suggest thatthe purpose of recording Abu Zubaydah was to gain insight into his phy sical reaction to the techniques used against him.

19. Shortly after Abu Zubaydah s transfer from CIA custody to UnitedStates military custody, in September 2006, President Bush firstacknowledged that the CIA had secretly detained him in facilities outsidethe United States. President Bush stated that he would not reveal thespecifics of this programme, including where these detainees have been heldand the details of their confinement, but he did state that the CIA had


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resorted to an alternative set of procedures and tough interrogationtechniques, in an effort to obtain information from Abu Zubaydah andothers held by the CIA.

20. President Bush later acknowledged in his memoir that, acting on theadvice 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-handdescription of his experience in the CIA programme. One of the few publicsources of Abu Zubaydah s description of his experience was anInternational Committee of the Red Cross (ICRC) memorandum which wasdisclosed without authorisation. After his transfer to Guantnamo Bay inSeptember 2006, the ICRC interviewed him and thirteen other victims ofCIA secret detention and described the statements in a memorandum dated14 February 2007. The ICRC determined that Abu Zubaydah was the onlydetainee who was subjected to all the authorised enhanced interrogationtechniques.

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

I was then dragged from the small box, unable to walk properly, and put on whatlooked like a hospital bed, and strapped down very tightly with belts. A black clothwas then placed over my face and the interrogators used a mineral water bottle to pourwater on the cloth so that I could not breathe. After a few minutes the cloth wasremoved and the bed was rotated into an upright position. The pressure of the strapson my wounds was very painful. I vomited. The bed was then again lowered to ahorizontal position and the same torture carried out again with the black cloth over myface 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. Istruggled against the straps, trying to breathe, but it was hopeless. I thought I wasgoing to die. I lost control of my urine. Since then I still lose control of my urine whenunder 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. Itried to sit down on the floor, but because of the small space the bucket of urine tippedover and spilt over me.... I was then taken out and again a towel was wrapped aroundmy neck and I was smashed into the wall with the plywood covering and repeatedlyslapped 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 nextsession of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedurewas repeated five times. On each occasion, apart from one, I was suffocated once ortwice and was put in the vertical position on the bed in between. On one occasion thesuffocation 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 wasstopped by the intervention of the doctor.

23. The ICRC report suggested that Abu Zubaydah understood that hewas the first person to be subjected to this treatment in United Statescustody, and that there were few predetermined limits to how far his abusemight go: I was told during this period that I was one of the first to receive


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these interrogation techniques, so no rules applied. It felt as though theywere experimenting and trying out techniques to be used later on other people.

(b) Authorised treatment during Abu Zubaydah s rendition to and detentionin Lithuania

24. The applicant s lawyers submitted that a further indication of thenature of the treatment of Abu Zubaydah in Lithuania could be seen fromthe authorised conditions of detention and transfer and interrogationtechniques applicable at the relevant time, as prescribed by the UnitedStates Government. They noted, however, that there has been no publicinvestigation of the conditions of detention and treatment of detainees at thesite in Lithuania that might clarify whether those CIA guidelines were infact complied with.

(i) Conditions during detention

25. From 2003 to 2006 the conditions of detention in CIA detentionfacilities were purportedly governed by the Guidelines on ConfinementConditions for CIA Detainees signed by the CIA Director, George Tenet.The guidelines were not amended until October 2006, after Abu Zubaydahhad been removed from CIA custody and in response to legislation passed

by the United States Congress to extend protection against cruel andinhuman treatment to CIA detention facilities overseas.

26. It was clear to the applicant s lawyers from two United States legalreviews of the conditions of confinement that at least the following sixstandard conditions of confinement were in use at the relevant time:

(i) Blindfolds or hooding designed to disorient the detainee and keep him fromlearning 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 isshackled to a chair;

(iii) Incommunicado, solitary confinement;

(iv) Continuous noise up to 79 dB, played at all times, and maintained in the rangeof 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 fluorescenttube 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 suchas Abu Zubaydah were in constantly illuminated cells, substantially cut offfrom human contact, and under twenty-four- hour surveillance, for morethan four years, including throughout his detention in Lithuania. Theconditions of confinement were designed to enhance interrogation, inaddition to providing security within the facility. United States Governmentdocuments recognised that:

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


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

(iii) that [t]hese conditions are unrelenting and, in some cases, have been in placefor 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 documentsdescribed the regime of authorised interrogation techniques applicableduring the relevant period, namely while Abu Zubaydah was detained inLithuania. As noted by the European Committee for the Prevention ofTorture when it visited Lithuania in 2010 (see paragraphs 84-88 below),[t]he interrogation techniques appliedin the CIA-run overseas detentionfacilities have certainly led to violations of the prohibition of torture and

inhuman or degrading treatment. In this connection the applicants lawyersalso referred to a 30 May 2005 memorandum from the United StatesDepartment of Justice Office of Legal Counsel, where authorised treatmentswere described as comprising three basic categories of abuse: conditioningtechniques, corrective techniques, and coercive techniques.

29. Conditioning techniques were used to put the detainee in abaseline state, and to demonstrate to the [detainee] that he has no controlover his basic human needs. The conditioning techniques were designedwith a view to their cumulative effect. The specific conditioningtechniques included nudity, dietary manipulation and sleep deprivation.

30. Corrective techniques entailed some amount of physical abuse usedto correct, startle, or to achieve another enabling objective. The techniquesdislodge expectations that the detainee will not be touched. Correctivetechniques include insult (facial) slap, abdominal slap, facial hold, andattention grasp. The techniques were designed to instil... fear andapprehension.

31. Coercive techniques place the detainee in more physical and psychological stress than the other techniques. The techniques includedwalling, water dousing, stress positions, wall standing, and crampedconfinement and waterboarding. The techniques could be usedsimultaneously.

3. Disclosure of the CIA s secret rendition programme

32. On 2 November 2005, when the applicant s lawyers believe that AbuZubaydah would still have been in Lithuania, The Washington Post

published an article claiming that as part of the campaign against terrorismthe CIA had conducted covert detention and interrogation of suspectedterrorists and was hiding and interrogating some of its most importantdetainees in Eastern Europe. Following the publication of the article by TheWashington Post and subsequent similar publications in the media about theCIA covert detention and interrogation programme, as well as its allegedimplementation in Europe, the Parliamentary Assembly of the Council of

Europe and the European Parliament initiated their own investigations ofthe matter.


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(a) Inquiry by the Council of Europe

(i) The Article 52 Procedure 1

33. On 21 November 2005 the Secretary-General of the Council ofEurope invoked the procedure under Article 52 of the European Convention

on Human Rights with regard to reports of European collusion in secretrendition flights. Member States were required to give information on therestraints provided for in their internal law over acts by foreign agents intheir jurisdiction, and on legal safeguards against unacknowledgeddeprivation of liberty.

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

provided on whether any official investigation was under way or had beencompleted.

35. As regards Lithuania, the reply was prepared by the Ministry ofForeign Affairs on the basis of information provided by the relevant Stateinstitutions. The reply was approved at a consultation meeting of theLithuanian Government and was discussed at a meeting of the SeimasForeign Affairs Committee when considering the issue of the activities ofthe United States secret services in Europe allegedly carried out in violationof human rights. No competent State institution, either in the course of

preparation of the replies by the Ministry of Foreign Affairs or duringconsideration of the issue by the Seimas Foreign Affairs Committee,

provided evidence confirming that the CIA or other United States secretservices had been engaged in the illegal confinement of suspected terroristson Lithuanian territory. Neither was there any information confirming thatLithuania s airports had been used for covert transportation of suspectedterrorists.

36. In February 2006 the Lithuanian Government provided the SecretaryGeneral of the Council of Europe with answers to the questions posed. Theresponse was a brief summary of the legal framework governing thefunctioning of foreign agents in Lithuania and the theoretical possibility ofclaiming damages for unlawful actions by State officials.

37. In a letter of 7 March 2006 the Secretary General noted that theexplanations provided by the Lithuanian Government did not address all thequestions in enough detail. He asked for supplementary explanations on1) control mechanisms regarding transiting aircraft which may be used forrendition purposes by foreign agencies, and to what extent the Lithuanianauthorities could exercise jurisdiction over such aircraft; 2) whether since1 January 2002 any Lithuanian officials had been involved in secretrendition, and whether any investigations had been conducted in thatconnection.

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


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

38. On 13 December 2005 the President of the Parliamentary Assemblyof the Council of Europe (PACE) asked the Committee on Legal Affairsand Human Rights to investigate the allegations of extraordinaryrenditions in Europe. Senator Dick Marty of Switzerland was appointedspecial rapporteur.

39. On 12 June 2006 the PACE published the 2006 Marty report 1. ThePACE reaffirmed its commitment to overcoming the threat of terrorism.That being so, it also found that in the name of fighting terrorism theUnited States had progressively woven a clandestine spider s web ofdisappearances, secret detentions and unlawful inter-state transfers, oftenincluding countries notorious for their use of torture. Hundreds of peoplehad become trapped in that spiders web, which, furthermore, had beenspun out with the collaboration or tolerance of many countries, includingseveral Council of Europe member States. This cooperation, which took

place in secret and without any democratic legitimacy, had spawned asystem which was utterly incompatible with the fundamental principles ofthe Council of Europe. The facts and information gathered to that date,along with new factual patterns in the process of being uncovered, indicatedthat the key elements of that spiders web had notably included: aworld-wide network of secret detent ions at CIA black sites and in militaryor naval installations; the CIA s programme of rendition, under whichterrorist suspects were flown between States on civilian aircraft, outside thescope of any legal protection, often to be handed over to States whichcustomarily resort to degrading treatment and torture; and the use ofmilitary airbases and aircraft to transport detainees as human cargo to

Guantnamo Bay in Cuba or to other detention centres.The PACE also held that some Council of Europe member States hadknowingly colluded with the U.S. to carry out these unlawful operations;some others had tolerated them or simply turned a blind eye. They had alsogone to great lengths to ensure that such operations remained secret and

protected from effect ive national or international scrutiny (paragraphs 3-9of the Resolution).

40. The Dick Marty report explains in great detail the CIA methodologyof treating a detainee during rendition. Although the rendition cases wereindividual, it seemed that in each separate case rendition was carried out inan 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 CIAagents, who travelled around the world mistreating victim after victim inexactly the same fashion. Dick Marty considered that no security measure

justified such a massive and systematic violation of human rights anddignity. In the cases examined, although the agents were aware that theywere dealing with possibly dangerous people, the principle of

proportionality was simply ignored and with it the dignity of the person. Inseveral instances, the actions taken in the course of a security checkwereexcessive in relation to security requirements and could therefore constitute

1Council of Europe, Committee on Legal Affairs and Human Rights, Alleged secret detentions andunlawful inter- state transfers of detainees involving Council of Europe member states, Doc. 10957,12 June 2006. < http://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdf >
http://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdfhttp://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdfhttp://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdf


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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 theyhumiliated 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 transfersof detainees involving Council of Europe member states: second report. Bythis time it considered as established with a high degree of probability thatsuch secret detention centres operated by the CIA had existed for someyears in Poland and Romania, though it did not rule out the possibility thatsecret CIA detentions may also have occurred in other Council of Europemember states. These secret places of detention formed part of theHigh-Value Terrorist Detainee (HVD) programme publicly referred to bythe President of the United States on 6 September 2006. The PACEobserved that implementation of that programme had given rise to repeatedserious breaches of human rights. The detainees were subjected to inhumanand degrading treatment, which was sometimes protracted. Certainenhanced interrogation methods used fulfilled the definition of torture andinhuman and degrading treatment in Article 3 of the European Conventionon Human Rights and the United Nations Convention against Torture andOther 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 memberStates concerned.

Lithuania was not mentioned in the document. However, the PACEurged the States to conduct national investigations of the allegedimplementation of the covert CIA programme of detention and interrogationof suspected terrorists, and proposed that the democratic control andsupervision of secret services be strengthened.

b) Inquiry by the European Union

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

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

43. On 6 July 2006 the European Parliament adopted a resolution 1,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 1. As far as Lithuania is concerned, the report noted that:

1 European Parliament, European Parliament resolution on the alleged use of European countries bythe 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.
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2006-0316+0+DOC+PDF+V0//EN


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

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

According to sources who saw the facility, the riding academy originally consistedof an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built athick concrete wall inside the riding area. Behind the wall, it built what oneLithuanian 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 ashower, a bed and a toilet. Separate cells were constructed for interrogations. The CIAconverted much of the rest of the building into garage space.

Intelligence officers working at the prison were housed next door in the convertedstable, 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 renovatedstructure 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 seeinglarge amounts of earth being excavated during the summer of 2004. Locals who sawthe activity at the prison and approached to ask for work were turned away byEnglish-speaking guards. The guards were replaced by new guards every ninetydays.

(a) The inquiry by the Lithuanian Parliament

63. Taking account of publicly voiced interpretations on the topic of thealleged CIA prison, the Lithuanian Parliament decided to examine thematter. 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 confinementon Lithuanian territory of individuals detained by the United States CentralIntelligence 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 CIAdetention centres or transportation and confinement of detainees in theRepublic of Lithuania.

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

65. In addition, requests for submission of information in writing were

submitted to the appropriate ministries, the civil aviation administration, theState border guard service (SBGS) and other authorities. Requests were


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The documents of the SBGS contain no records of the landing and inspection of thisaircraft.

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

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

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

The Committee established that the SSD had received a request from the partners toequip facilities in Lithuania suitable for holding detainees. The cases of partnershipcooperation 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 holdingdetainees 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 werecreated or that it was possible to hold and interrogate detainees at the facilities ofProject 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 partnerswithout monitoring by the SSD and allowed the partners to use the infrastructure asthey 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 ofthe 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 adequatearrangements were communicated to the SSD officers by Deputy Director General ofthe SSD Dainius Dabainskas.

According to the SSD officers, representatives of the partners were never left alonein the facility. They were always accompanied by either Dainius Dabainskas or oneof the SSD officers.

According to the information received in the course of the investigation, it is evidentthat 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 thearrival and departure of the partners. In addition, the SSD did not always have theopportunity to observe every person arriving and departing.

3. Did state institutions of the Republic of Lithuania (politicians, officers andcivil servants) consider the issues relating to activities of secret CIA detentioncentres in the territory of the Republic of Lithuania, transportation andconfinement of detainees in the territory of the Republic of Lithuania?

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

According to the country s top officials (Presidents of the Republic, PrimeMinisters, and Speakers of the Seimas), the members of the CNSD of the Seimas were


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informed about the international cooperation between the SSD and the CIA in ageneral fashion, without discussing specific operations or their outcomes. Themention of wide-scale direct cooperation between the SSD and CIA was made onlyonce, at a sitting of the State Defence Council (19 September 2001) when consideringthe issue of international terrorism and anti-terrorist actions and prevention, crisismanagement 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 whencarrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the thenheads of the SSD did not inform any of the country s top officials of the purposes andcontent of the said Projects.

67. The Committee s Conclusions suggested that the Office of theProsecutor General should investigate whether the actions of MeysLaurinkus, Arvydas Pocius and Dainius Dabainskas displayed evidence ofabuse 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 toabuse of official position pursuant to Article 228 1 of the CriminalCode. The subject of investigation was restricted to and defined by thecircumstances stated in the CNSD Conclusions: 1) the arrival of the UnitedStates CIA aircraft in Lithuania and departure therefrom, what accessUnited States officials had to the aircraft, and the inspection of the goodsand passengers on the aircraft; 2) the implementation of Project No. 1 andProject No. 2; 3) whether the leadership of the State Security Departmentkept the highest officials of the State informed on the objectives and thecontent of Project No. 1 and Project No. 2.

69. On 20 September 2010, the United Kingdom human rightsorganisation Reprieve, acting on behalf of the applicant, wrote to theProsecutor General requesting the prosecutor to investigate Abu Zubaydah sdetention in a CIA prison in Lithuania and to recognise him as a victim ofthe rendition, detention and interrogation programme. Darius Rauluaitis,Deputy Prosecutor General, responding on 27 September 2010, explainedthat the ongoing investigation already included the crimes allegedlycommitted against Abu Zubaydah:

[D]uring the pre-trial investigation not only were the circumstances related toabuse of official position with major legal significance (which was why the pre-trialinvestigation was initiated) investigated, but also the circumstances which defineother criminal acts of which possible individual signs may be seen during the pre-trialinvestigation. Among such criminal acts are those you have pointed out should also bementioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) aswell as illegal transportation of people across national borders (Article 292 of theCriminal Code). Considering the fact that the pre-trial investigation in relation to thecircumstances provided in your application is already being conducted, please beadvised that the circumstances provided in your application will be considered when

performing the said pre-trial investigation No. 01-2-00016-10.

70. D. Rauluaitis thus assured lawyers acting for Abu Zubaydah that

the circumstances concerning Abu Zubaydah s rendition and secretdetention in Lithuania were under investigation. D. Rauluaitis asked


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Reprieve to submit all written information in its possession, which wouldestablish Abu Zubaydah s presence in Lithuania as part of the CIAdetention, interrogation and rendition programme.

71. Reprieve responded on 18 November 2010, stating that because ofrestrictions imposed by the United States Government it was unable to

provide the investigation with the confidential information confirming AbuZubaydah s presence within the territory of Lithuania between 2004and 2006. However, Reprieve provided a list of sources of evidence that the

prosecutor should pursue as part of a thorough investigation. Reprieve alsorequested information about the progress of the investigation. The

prosecutor refused Reprieve s request on 13 January 2011, on the basis thathe considered that Reprieve was not a party to the proceedings [with] theright to examine the material of the pre- trial investigation. The prosecutoralso noted that, in accordance with Article 177 1 of the Code of CriminalProcedure, 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 groundthat no action/inaction had been committed which constituted evidence ofa criminal offence or a criminal misdemeanour.

73. As the prosecutor s report reads, in the course of the pre-trialinvestigation persons questioned were those relevant to the subject matter ofthe investigation and possessing significant information for the resolution ofthe case. Documents essential for the pre-trial investigation were obtained,and information and premises inspected: these were referred to in theConclusions as Project No. 1 and Project No. 2. For the prosecutor, thetotality of the information obtained in the course of the pre-trialinvestigation was sufficient to reach a conclusion and to adopt a proceduraldecision. It was also noted that a large part of the information obtained inthe course of the investigation was to be treated as classified, because itconstituted State or official secrets. Accordingly, such information was notdiscussed 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 ofoffice, but also whether there was evidence of any other criminal offences inconnection 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 theaircraft 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 aircraftlinked with the United States Central Intelligence Agency did arrive in and departfrom the Republic of Lithuania. It has also been established that on some occasionsCustoms 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 airportand 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 wasconfirmed 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 SBPSand the SSD. ...It should be noted that Article 16 of the Law on Intelligence stipulatesthat State institutions and officials are not allowed to interfere with or otherwise


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influence intelligence activities carried out by intelligence officers. Official vehiclesof intelligence staff may not be inspected without the permission of the ProsecutorGeneral.

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

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

Having concluded that there is no information about illegal transportation of personson 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 toArticle 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 theRepublic 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 in2004 implemented Project No. 2, referred in the Conclusions. Both projects had beenrelated 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 violationsin 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 wasobtained to the effect that when implementing Project No. 1 the premises wereoutfitted specifically for the purpose of incarcerating detained persons. Factualinformation received about specific aspects of the premises (which allows thehypothesis that it was possible to keep a detained person there), when appraisedtogether 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 providea 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 receivedto suggest that this project was used for keeping detained persons. To the contrary, the


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factual information and the testimony of all the witnesses support other purposes anduse of the building, while the circumstances referred to in the [CNSD] Conclusionsthat the layout of the building, its enclosed nature and protection of the perimeter aswell as the sporadic presence of the SSD staff in the premises allowed for actions tobe taken by officers of the partners without being monitored by the SSD, and alsoallowed them to use the infrastructure as they chose do not create a basis for criminalcharges and merely confirm that cooperation between the SSD and the CIA took placeand 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 CriminalCode [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 investigationand its qualification in accordance with Article 288 of the Criminal Code, it should benoted that there are no grounds to bring criminal charges in accordance withArticles 100 (treatment of people banned by international law) or 146 (unlawfulrestriction 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 thestatement by Reprieve, received by the Office of the Prosecutor General of theRepublic of Lithuania on 20 September 2010. The statement presented a version ofevents according to which the officers of the United States Central IntelligenceAgency between spring 2004 and September 2006 conveyed a detained person, [AbuZubaydah], to the Republic of Lithuania, detained him in Lithuania and removed himfrom there. Reprieve did not provide any factual information to support this, no sourceof information has been provided or revealed, and in the course of the pre-trialinvestigation, as has been noted, no information was received about illegaltransportation 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 ofProject No. 1 and Project No. 2, the prosecutor found:

As has been correctly stated in the [CNSD] Conclusion, the legal basis for theinternational cooperation of the SSD is stipulated in the Law on Intelligence, and thereis no requirement in law for the directions (or tasks) relating to internationalcooperation 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 befollowed or tasks to be undertaken emerged from a general need for internationalcooperation and from direct contacts between the SSD and the special services ofother countries. In the joint implementation of Project No. 1 and Project No. 2 by theSSD of the Republic of Lithuania together with the CIA of the United States ofAmerica, the leadership of the SSD at that time did not advise any high-level officialof 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 andshould be shared on a need to know basis, it follows that in this part [of theinvestigation] 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-trialinvestigation, it has to be stated that all necessary and sufficient measures and

possibilities had been exhausted to collect information on any criminal offencescommitted. However, in the course of the pre-trial investigation no objective data wasgathered which would confirm that there had been abuse of office (or another criminaloffence) and the totality of the factual information is not sufficient to find thatcriminal offences were committed. Therefore, at the present time it is not possible to


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conclude that criminal offences were committed. On the contrary, the hypotheticalsuppositions which were the basis for the pre-trial investigation [on the charges ofabuse 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 Procedurestipulates that criminal proceedings may not be started, and if they have been startedthey must be terminated, where there is no indication of a criminal offence or a

criminal misdemeanour. Therefore, this pre-trial investigation no. 01-2-00016-10must be discontinued, because there is nothing to indicate that there has been acriminal offence or misdemeanour.

It has already been concluded that, to summarise the factual information containedin the material of the pre-trial investigation about the cooperation between the SSDand 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 thehighest officials of the State. However, there is sufficient evidence to find that actionsof 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 whotook part in that cooperation, Meys Laurinkus, Arvydas Pocius and DainiusDabainskas, as well as actions of thechief executives of the SSD and its other staffwho 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, maywarrant action for disciplinary offences. However, the former chief executives of theSSD, Meys Laurinkus, Arvydas Pocius and Dainius Dabainskas, are no longeremployed by the SSD and [thus] no disciplinary sanctions may be applied to them. Inaddition, 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 adisciplinary 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 toother authorities for examination of a disciplinary offence after the pre-trialinvestigation 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 ProsecutorGeneral of the Republic of Lithuania, the Department of Information Security and theInspectorate 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 whichindicated 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 AbuZubaydah s behalf. On 22 June 2011 Reprieve requested a written copy ofthe decision to close the investigation, and also asked for information on therights available to Abu Zubaydah as a victim of the crimes covered by theinvestigation. On 27 June 2011 Reprieve requested the Prosecutor Generalto provide the following:

(1) indicate with reference to provisions of the Criminal Code of the Republic ofLithuania which crimes were investigated within pre-trial investigation

No. 01-2-00016-10;

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

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


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

80. The applicant s lawyers wrote to the Court that by the date the present application was lodged with the Court the Prosecutor General sOffice had not responded to either letter. When additional flight data cameto 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 additionalinvestigative actions, and to request assurances from the prosecutor prior tosubmitting him additional flight data confidentially.

81. The Prosecutor General announced on 21 October 2011 that hewould not reopen the terminated criminal investigation. This decision wastaken on the basis that there was no evidence that anyone had been detainedin the territory of Lithuania.

82. In May 2011, Amnesty International also wrote to the ProsecutorGeneral, stating that in its view the investigation had failed to thoroughlyinvestigate the allegations of torture, ill-treatment and enforceddisappearance, and that information already in the public domainconstituted a strong prima facie case for continuation of the investigation:the secret sites had been identified; SSD officials had acknowledged that thesites had been established in order for suspected terrorists to be detainedthere; both parliamentarians and the European Committee for the Preventionof Torture (the CPT) had stated that the physical layout of the sites andthe operational dynamic (no inspections of aircraft were conducted and theCIA had ultimate control over the sites) were easily adaptable to a detentionregime; at least one aircraft had carried passengers in addition to crew.

83. In June 2011, the Prosecutor General responded to AmnestyInternational s letter, characterising it as a complaint about the terminationof the investigation and stating that the organisation had no right to submitsuch a complaint, as it was not part of the investigation proceedings, and,with regard to the substance, that after having become familiarised with theletter he did not find a basis for reopening the investigation.

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

84. On 19 May 2011 the European Committee for the Prevention ofTorture released its report to the Lithuanian Government on its visit toLithuania from 14-18 June 2010 1. 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 Chairmanof the Seimas Committee on National Security and Defence about thefindings of the Committee s investigation of this matter, and met membersof the Prosecutor General s Office entrusted with the pre-trial investigationwhich was under way.

86. In its report the CPT acknowledged at the outset that theinterrogation techniques applied in the CIA-run overseas detention facilitieshad certainly led to violations of the prohibition of torture and inhuman or

1 Council of Europe, the European Committee for the Prevention of Torture, Report to theLithuanian Government on the visit to Lithuania carried out by the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishmen t, CPT/Inf (2011) 17,19 May 2011. < http://www.cpt.coe.int/documents/ltu/2011-17-inf-eng.htm >
http://www.cpt.coe.int/documents/ltu/2011-17-inf-eng.htmhttp://www.cpt.coe.int/documents/ltu/2011-17-inf-eng.htmhttp://www.cpt.coe.int/documents/ltu/2011-17-inf-eng.htm


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degrading treatment. It was against that backdrop that the CPT delegationexamined the question of the alleged existence of secret detention facilitiesin Lithuania. The central issue for the delegation was to try to assess theeffectiveness of the pre-trial investigation. However, for the record, thedelegation 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 CPTnoted:

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 theParliamentary Committee s report, facilities suitable for holding detainees wereequipped, taking account of the requests and conditions set out by the partners. (...)however, according to the data available to the Committee, the premises were notused for that purpose.

The facilities of Project No. 2 were located in a small locality situated some 20kilometres 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 withina surrounding external structure. Two parts of this building (a fitness room and atechnical area) contained apparatus, machinery and spare parts of US origin as well asinstructions and notices written in English. A Lithuanian official accompanying thedelegation said that this equipment and written material had been left behind by the

previous occupants. According to the Parliamentary Committee s report, the progressof 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 perimeteras 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 withoutthe control of the SS D 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 notcontain anything that was highly suggestive of a context of detention; at the sametime, both of the facilities could be adapted for detention purposes with relatively littleeffort.

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

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

70. As already indicated, the allegations of secret detention facilities in Lithuaniathat 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-trialinvestigation 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, thoseallegations had to be seen in the context of certain undisputable facts that were by that


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

73. The pre-trial investigation has not yet been finalised. According to theProsecutor General s Office, the collected data is still being analysed and decisionsremain 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 informationwill be made public about both the methodology and the findings of the pre-trialinvestigation. Any restrictions on access to information on grounds of state orservice secrecy should be kept to the absolute minimum . This will enable a properassessment of the overall effectiveness of the investigation to be made and ensure thatthere is sufficient public scrutiny of its results.

The CPT requests that the findings of the pre-trial investigation be forwardedto 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 ofLithuania on the subject of a named person who is currently being held by the USauthorities in the detention facilities at Guantnamo Bay. The organisation affirmsthat it has received information from the most credible sources inside the UnitedStates 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 sOffice in the light of the above-mentioned letter .

88. In their response to the report by the CPT, the Government inessence 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 anotherresolution on the CIA s secret rendition 1. Having considered the follow-upreport on alleged transportation and illegal detention of prisoners inEuropean countries by the CIA, the European parliament held as follows:

(...) whereas the Lithuanian authorities have endeavoured to shed light onLithuania s involvement in the CIA programme by carrying out parliamentary and

judicial inquiries;

whereas the parliamentary investigation by the Seimas Committee on NationalSecurity and Defence concerning the alleged transportation and confinement of

persons detained by the CIA on Lithuanian territory established that five CIA-relatedaircraft landed in Lithuania between 2003 and 2005 and that two tailored facilitiessuitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were prepared atthe request of the CIA;

whereas the [European Parliament s] delegation thanks the Lithuanian authoritiesfor welcoming Members of the European Parliament to Vilnius in April 2012 andallowing the delegation access to Project No. 2; whereas the layout of the buildingsand installations inside appears to be compatible with the detention of prisoners;whereas many questions relating to CIA operations in Lithuania remain open despite

1 European Parliament, Resolution on alleged transportation and illegal detention of prisoners inEuropean countries by the CIA: follow-up of the European Parliament TDIP Committee report

(2012/2033(INI)), A7-0266/2012, 2 August 2012.
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//ENhttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0266+0+DOC+PDF+V0//EN


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the subsequent judicial investigation conducted in 2010 and closed in January 2011;whereas the Lithuanian authorities have expressed their readiness to re-launchinvestigations if other new information were to come to light, and whereas theProsecutor s Office has offered to provide further information on the criminalinvestigation 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 secretlyheld in Lithuania; calls on the Lithuanian authorities to honour their commitment toreopen the criminal investigation into Lithuania s involvement in the CIA programmeif new information should come to light, in view of new evidence provided by theEurocontrol data showing that plane N787WH, alleged to have transported AbuZubaydah, did stop in Morocco on 18 February 2005 on its way to Romania andLithuania; notes that analysis of the Eurocontrol data also reveals new informationthrough flight plans connecting Romania to Lithuania, via a plane switch in Tirana,Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on26 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 sOffice to substantiate with documentation the affirmations made during the LIBEdelegation s visit that the categorical conclusions of the judicial inquiry are that nodetainees have been detained in the facilities of Projects No. 1 and No. 2 inLithuania.

COMPLAINTS

90. At the outset the applicant s lawyers observed that this case presentswhat are perhaps unprecedented levels of difficulty for Abu Zubaydah togain 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 scase- law to the effect that Convention proceedings do not in all cases lendthemselves to a rigorous application of the principle affirmanti incumbit

probatio (he who alleges something must prove that allegation), because incertain instances the respondent Government alone have access toinformation capable of corroborating or refuting these allegations (see

Khudoyorov v. Russia , no. 6847/02, 113, ECHR 2005-X (extracts)). Insome cases the Court has found the violations proved beyond a reasonabledoubt based on the coexistence of sufficiently strong, clear and concordantinferences or of similar unrebutted presumptions of fact (seeVarnava andOthers 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 willarise in respect of ill-treatment occurring during such detention. Indeed, the

burden of proof may be regarded as resting on the authorities to provide asatisfactory and convincing explanation (see, mutatis mutandis , Salmanv. Turkey [GC], no. 21986/93, 100, ECHR 2000-VII).

91. In the applicant s case, his complaints were based on evidence whichwas entirely in the hands of the two governments involved, those ofLithuania and the United States. A policy of secrecy and concealment has

been in operation at the highest levels of government in both Lithuania andthe United States with respect to the rendition programme in general and


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Abu Zubaydah s detention in Lithuania in particular. The officialinvestigation by the Lithuanian authorities was cursory and unsatisfactory,and Abu Zubaydah s representatives have not been allowed access to thecase 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 ownevidence, due to the restrictions imposed by the United States authorities onthe sharing of any information communicated by him with the outsideworld, including with the Court. It is against this exceptional backgroundthat 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 lawyerscomplained that the egregious nature and the total experience of therendition process itself amounted to a violation of his rights under the above

provision. Whilst not being able to present direct evidence of his treatmentinside the secret detention facility in Lithuania, they noted that in addition toinferences flowing from his prior documented history of torture at the handsof the CIA, reasonable inferences could also be drawn from detention andinterrogation techniques that were authorised and employed by the CIA atthe time of his captivity on Lithuanian territory. For the applicant s lawyers,the cumulative effect of specific forms of torture and ill-treatment that wereimposed through the conditions of detention, interrogation and transferamounted to a violation of torture prohibition. The Lithuanian authorities,despite having knowledge of the CIA rendition programme and the methodsit used, provided the CIA with a secret detention site, instead of taking allnecessary steps to prevent violations of Article 3 in respect of AbuZubaydah, 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 Lithuanianterritory to another CIA secret detention facility and, subsequently, toGuantnamo Bay, exposed him to a real risk of being subjected to treatmentcontrary to Article 3. However, Lithuania not only did not intervene to

prevent his removal, but actively assisted the US agents to conduct theunlawful 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 AbuZubaydah was detained in Lithuania for over a year, his detention was notacknowledged, and no official trace of it existed in the public domain at thisstage. Prolonged arbitrary detention and lack of any safeguards contained inArticle 5 of the Convention were acutely at issue in this case. Throughouthis period of detention on Lithuanian territory, Abu Zubaydah was notallowed contact with a lawyer, nor was he brought before a court or allowedto challenge the lawfulness of his detention, and he was not informed of thereasons 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 crucialone, because without the active cooperation of Lithuania when providing


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the CIA with a secret prison, Abu Zubaydah s confinement on Lithuanianterritory would not have happened. Critically, those detained on Lithuanianterritory were entitled to protection under Lithuanian law, yet this wasdenied 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, throughagreements with the CIA, and through acts and omissions, Lithuaniaenabled Abu Zubaydah to be held in a system of secret detention, inviolation of the panoply of rights guaranteed by Article 5 of the Convention.

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

95. The applicant s lawyers also observed that while in detention inLithuania Abu Zubaydah was not permitted any contact with his family, norwas he allowed to establish contact with a lawyer. While the applicant couldnot present evidence that he had requested visits or to correspond with hisfamily or with a lawyer when in Lithuania, secret detention designed toremove the person from all contact with and support from outside worldwas clearly against the spirit and the letter of Article 8 of the Convention.On this point it was also noted that the Lithuanian legal provisionsconcerning detention do not allow an absolute ban on contact with closerelatives or with a lawyer. On the contrary, they provide for protection ofsuch rights as access to relatives, lawyers and the diplomatic and consularinstitutions of the country of the detained person.

In addition, the systemic recording of Abu Zubaydah, including when hewas 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 indetention, and deprived him of his private space, constituting a most seriousinterference with his private life, which had no plausible justification andconstituted a separate violation of Article 8 of the Convention.

96. Lastly, the applicant s lawyers complained that Lithuania hadviolated, and continues to violate, Abu Zubaydah s rights underArticles 3, 5 and 8, as well as his right to an effective remedy under

Article 13 of the Convention, by failing to conduct an effectiveinvestigation of his enforced disappearance, secret detention, torture and ill-treatment. They argued, firstly, that in the context in which allegations ofLithuanian black sites had already surfaced in August 2009, and thespecificity of the information concerning renditions and the locations ofthose sites, the Prosecutor General should have taken resolute action andlaunched an investigation immediately. Only such an approach would have

been consistent with the requirement of promptness, long recognised by theCourt, to the effect that the State must open an investigation of its ownmotion as soon as the authorities become aware of any credible assertionor arguable claim that an individual had suffered treatment contrary toArticle 3 at the hands of State agents.


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97. Secondly, the investigation was plagued by a lack of independenceand impartiality. When the Prosecutor General eventually opened hisinvestigation in January 2010, he limited its scope to the questions defined

by the Conclusions of the Seimas CNSD report, rather than launching anindependent investigation. Furthermore, the Seimas inquiry being a political

one, the prosecutor did not need to wait for the CSND report before openinga pre-trial investigation on criminal charges.

98. Thirdly, the pre-trial investigation was not thorough, wide-rangingand rigorous, involving a serious attempt to uncover all relevant facts andidentify those responsible. The prosecutor failed to follow all reasonableleads to uncover rendition operations, although numerous critical lines ofinquiry were suggested to him by Reprieve and Amnesty International

before the investigation was terminated. The applicant s lawyers believedthat the prosecutor had failed to seek or obtain evidence from any other

prosecutor in Europe or the United States, despite the fact that numerouscountries have previous or ongoing investigations into CIA-led renditionand interrogation. The prosecutor also failed to obtain evidence from theCouncil of Europe, Eurocontrol and NATO, each of which could have beenholding information vital to the investigation. One such telling example ofthe inadequacy of