EHRM, 13-12-2012, nr. 39630/09

On 31 December 2003 the applicant boarded a bus in Ulm, Germany, with a view to visiting Skopje in order, as he stated, ‘to take a short vacation and some time off from a stressful home environment’. At around 3 p.m. he arrived at the Serbian/Macedonian border crossing at Tabanovce. A suspicion arose as to the validity of his recently issued German passport. A border official checked his passport and asked him about the purpose of his trip and the length and location of his intended stay. A Macedonian entry stamp dated 31 December 2003 was affixed to his passport. On that occasion, his personal belongings were searched and he was questioned about possible ties with several Islamic organisations and groups. The interrogation ended at 10 p.m. Accompanied by men in civilian clothes who were armed, he was driven to a hotel, which later research indicated was the Skopski Merak hotel in Skopje (‘the hotel’). Upon his return to Germany, the applicant recognised, through photographs available on the hotel's website, the hotel building, the room where allegedly he had been held and one of the waiters who had served him food during his detention in the hotel.

The applicant was taken to a room on the top floor of the hotel. During his detention at the hotel, he was watched by a team of nine men, who changed shift every six hours. Three of them were with him at all times, even when he was sleeping. He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened with being shot. After seven days of confinement, another official arrived and offered him a deal, namely that he would be sent back to Germany in return for a confession that he was a member of Al-Qaeda.

On the thirteenth day of his confinement, the applicant commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the remaining ten days of his detention in the former Yugoslav Republic of Macedonia. A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany.

On 23 January 2004 at around 8 p.m., the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany. Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport.

Upon arrival, still handcuffed and blindfolded, he was initially placed in a chair, where he sat for one and a half hours. He was told that he would be taken into a room for a medical examination before being transferred to Germany. Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus. As stated by the applicant's lawyers at the public hearing of 16 May 2012, of all the acts perpetrated against the applicant that had been the most degrading and shameful. According to the applicant, a suppository was forcibly administered on that occasion. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. The aircraft was surrounded by armed Macedonian security guards. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. An anaesthetic was also administered over his nose. He was mostly unconscious during the flight. A Macedonian exit stamp dated 23 January 2004 was affixed to the applicant's passport.

According to the applicant, his pre-flight treatment at Skopje Airport, ‘most likely at the hands of the special CIA [United States Central Intelligence Agency] rendition team’, was remarkably consistent with a recently disclosed CIA document describing the protocol for the so-called ‘capture shock’ treatment (see paragraph 124 below).

Upon landing, the applicant disembarked. It was warmer outside than it had been in the former Yugoslav Republic of Macedonia, which was sufficient for him to conclude that he had not been returned to Germany. He deduced later that he was in Afghanistan and that he had been flown via Baghdad.

After landing in Afghanistan, the applicant was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow. Through a window at the top of the cell, he saw the red, setting sun. Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the ‘Salt Pit’, a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects.

During his confinement, he was interrogated on three or four occasions, each time by the same man, who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German Government were ignored.

In March 2004 the applicant, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charge. As a consequence of the conditions of his confinement and his hunger strike, the applicant's health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested it on several occasions.

On 10 April 2004, the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it. After this procedure, the applicant was given some canned food, as well as some books to read.

Following his force-feeding, the applicant became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days. Around that time, the applicant felt what he believed to be a minor earthquake. In this connection, the applicant submitted the ‘List of significant earthquakes of the world in 2004’, issued by the US Geological Survey (USGS) on 6 October 2005. According to this document, there was one earthquake on 5 April 2004 in the Hindu-Kush Region, Afghanistan.

On 16 May 2004 the applicant was visited by a German speaker who identified himself only as ‘Sam’. The latter visited the applicant three more times prior to his release.

On 21 May 2004 the applicant began his second hunger strike.

On 28 May 2004 the applicant, blindfolded and handcuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje. He was told to change back into the clothes he had worn upon his arrival in the former Yugoslav Republic of Macedonia and was given two new T-shirts, one of which he put on. He was then taken to the waiting aircraft, wearing a blindfold and earmuffs, and was chained to his seat there. ‘Sam’ accompanied him on the aircraft. He said that the plane would land in a European country other than Germany, but that the applicant would eventually continue on to Germany.

When the aircraft landed, the applicant, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. The applicant was aware of men getting out of the car and then of men getting in. All of the men had Slavic-sounding accents, but said very little. Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia. The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed the applicant's long hair and long beard and told him that he looked like a terrorist. He was then driven to the Mother Teresa Airport in Tirana. He was guided through customs and immigration control without inspection and put on a plane to Frankfurt, Germany. An Albanian exit stamp was affixed to the applicant's passport.

On 29 May 2004 at 8.40 a.m. the applicant arrived at Frankfurt International Airport. He was about eighteen kilograms lighter than when he had left Germany, his hair was long and unkempt and he had not shaved since his arrival in the former Yugoslav Republic of Macedonia. Immediately after arrival in Germany, the applicant met Mr M. Gnjidić, a lawyer practising in Ulm.

In his written submissions, the applicant stated that he had not undergone any medical examination apart from the isotope analysis of his hair follicles (see paragraphs 56 and 57 below). At the public hearing, the applicant's lawyers specified that the results of some medical examinations carried out upon his return to Germany had been submitted by the German public prosecutor to the European Parliament's Fava inquiry (see paragraphs 47–51 below). However, those results had not been submitted to the Court since they had not been conclusive as to the presence of any physical injury, given the long time that had elapsed since the incident at Skopje Airport. Furthermore, the applicant stated that he had been subjected to sophisticated interrogation techniques and methods, which had been specifically designed not to leave any evidence of physical ill-treatment.

The 2007 Marty report (see paragraph 46 below) noted that the applicant had asked for treatment at the treatment centre for torture victims in Neu-Ulm shortly after his return to Germany in 2004. However, it took until 2006 for Mr Gnjidić to obtain the required health-insurance funding agreement to start a course of limited treatment (seventy hours) at the centre, which had been considered insufficient both by Mr Gnjidić and by the therapist herself (see paragraph 296 of the 2007 Marty report).

The applicant also submitted a written statement of 5 January 2009 by Dr Katherine Porterfield, a senior psychologist at the Bellevue/NYU Program for Survivors of Torture, in which she had confirmed that the applicant had suffered from post-traumatic stress disorder and depression ‘most likely caused by his experience of capture and extensive maltreatment and abuse’. Dr Porterfield's opinion was based on several phone calls and two follow-up discussions with the applicant. She also advised him to visit a clinician in his community with the requisite expertise to help him. The applicant did not comply with that instruction.

The Government confirmed their version of events as outlined above (see paragraphs 37 and 39 above). They denied that the applicant had been detained and ill-treated by State agents in the hotel, that he had been handed over to CIA agents, and that the latter had ill-treated him at Skopje Airport and transferred him to a CIA-run prison in Afghanistan. In their submission, the applicant had freely entered, stayed in and left the territory of the respondent State. The only contact with State agents had occurred on 31 December 2003, on the occasion of his entry into the respondent State, when inquiries had been undertaken regarding the validity of his passport. There had been no other contact with State agents during his entire stay in the respondent State. The inquiries by the Ministry of the Interior demonstrated that the applicant had stayed in the respondent State by his own choice and free will between 31 December 2003 and 23 January 2004, when he had freely left the State through the Blace border crossing.

In support of their argument, they submitted a copy of the following documents: extracts from the official border-crossing records for Tabanovce and Blace; an extract from the hotel guest book in which the applicant had been registered as a guest occupying room number 11 between 31 December 2003 and 22 January 2004, and two letters of February 2006 in which the hotel's manager, firstly, had communicated to the Ministry of the Interior the names of six persons who had been on duty in the hotel at the relevant time and, secondly, had denied that any person had ever stayed in the hotel involuntarily. It was further specified that the person whose photograph was on the hotel's website (see paragraph 17 above) was Mr Z.G., who could be found in the hotel. They also produced a letter of 3 February 2006 in which the Macedonian Ministry of Transport/Civil Aviation Administration had informed the Ministry of the Interior that on 23 January 2004 a Boeing 737 aircraft flying from Palma, registered as flight no. N313P, had been given permission to land at Skopje Airport, that the same aircraft had received permission (at 10.30 p.m.) to take off on the same day to Kabul and that at 2.25 a.m. on 24 January 2004, permission had been given for that aircraft to fly to Baghdad. Furthermore, the Government filed a copy of the applicant's hotel bills which, according to them, he had paid in cash. Lastly, they provided a copy of a police record of the applicant's apprehension at the Tabanovce border crossing on 31 December 2003. As specified in the record, the applicant had been held between 4.30 p.m. and 9.30 p.m. The record does not state the reasons for his apprehension, but it contains an incomplete handwritten note that he was apprehended on the basis of ‘tel. no. 9106 of 8 December 2003’.

On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.

It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. During its visit to the former Yugoslav Republic of Macedonia, the inquiry met with high-ranking officials.

On 6 July 2006 the European Parliament adopted a Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2027(INI)), P6_TA (2006)0316), which stated, inter alia:

On 30 January 2007 the final Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200 (INI)), doc. A6-0020/2007) was published. Noting the lack of thorough investigation by the respondent State, the report stated, inter alia:

The report also emphasised that ‘the concept of ‘secret detention facility’ includes not only prisons, but also places where somebody is held incommunicado, such as private apartments, police stations or hotel rooms, as in the case of Khaled El-Masri in Skopje’.

In the course of the periodic review of the respondent State's compliance with the International Covenant on Civil and Political Rights conducted by the United Nations (UN) Human Rights Committee during its March-April 2008 session, the latter ‘noted the investigation undertaken by the State party and its denial of any involvement in the [applicant's] rendition notwithstanding the highly detailed allegations as well as the concerns [raised by the Marty and Fava inquiries]’. The UN Human Rights Committee made the following recommendation:

This recommendation was supported by the Commissioner for Human Rights of the Council of Europe in his report published on 11 September 2008 (Council of Europe Commissioner for Human Rights, Thomas Hammarberg, ‘Report on visit to the former Yugoslav Republic of Macedonia, 25–29 February 2008’).

On 9 April 2008 the applicant filed a petition with the Inter-American Commission on Human Rights. On 23 August 2009 the Commission transmitted the petition to the US Government for comments. No further information has been provided in respect of these proceedings.

Pursuant to Article 107 § 1 (4) of the Criminal Code, prosecution of offences subject to a prison sentence of more than three years becomes statute-barred five years after the offence was committed.

Under Article 108 § 3, any procedural step taken with a view to prosecuting the perpetrator interrupts the running of the time bar.

Article 140 of the Criminal Code provides that a person who unlawfully detains, holds in custody or otherwise restricts another's freedom of movement is to be fined or punished by a term of imprisonment of one year. An official who unlawfully deprives another of his or her liberty is to be punished by a term of imprisonment of six months to five years.

Article 142 of the Criminal Code punishes acts of torture, providing for a prison term of three months to five years.

Article 143 of the Criminal Code provides that a person who, in the performance of his or her official duties, mistreats, intimidates, insults or generally treats another in such a manner that his or her human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years.

The relevant part of Article 36 of the Vienna Convention on Consular Relations reads as follows:

Article 36

Communication and contact with nationals of the sending State

The relevant provisions of the ICCPR, which was adopted on 16 December 1966 and entered into force on 23 March 1976, read as follows:

Article 4

Article 7

Article 9

The relevant provisions of the CED, which was adopted on 20 December 2006 and entered into force on 23 December 2010 and has been signed but not ratified by the respondent State, read as follows:

Article 1

Article 2

Article 3

Article 4

The relevant passage of this manual reads as follows:

The relevant parts of the Articles, adopted on 3 August 2001 (Yearbook of the International Law Commission, 2001, vol. II), read as follows:

Article 7

Excess of authority or contravention of instructions

Article 14

Extension in time of the breach of an international obligation

Article 15

Breach consisting of a composite act

Article 16

Aid or assistance in the commission of an internationally wrongful act

The relevant passage of this report reads as follows:

The relevant parts of this Resolution read as follows:

The relevant parts of this Resolution read as follows:

The UN General Assembly's Resolution 60/148 reads as follows, in so far as relevant:

The relevant parts of the Venice Commission's Opinion read as follows:

In this report the Special Rapporteur noted the following:

The relevant parts of the above Resolutions read as follows:

The Guidelines address the problem of impunity in respect of acts or omissions that amount to serious human rights violations. They cover States' obligations under the Convention to take positive action in respect not only of their agents, but also in respect of non-state actors. According to the Guidelines, ‘impunity is caused or facilitated notably by the lack of diligent reaction of institutions or State agents to serious human rights violations. States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system’. They provide inter alia for the general measures that States should undertake in order to prevent impunity, the duty to investigate, as well as the adequate guarantees for persons deprived of their liberty.

This case concerned Mr Feroz Ali Abbasi, a British national who had been captured by US forces in Afghanistan and transported in January 2002 to Guantánamo Bay in Cuba. He had been held captive without access to a court or any other form of tribunal or to a lawyer. He contended that the right not to be arbitrarily detained had been infringed. The court found that Mr Abbasi's detention in Guantánamo, which it referred to as ‘a legal black-hole’, had been arbitrary ‘in apparent contravention of fundamental principles recognised by both [English and American] jurisdictions and by international law’.

On 18 December 2003, in a case involving a Libyan man (Mr Gherebi) held as an ‘enemy combatant’ at Guantánamo, the US Court of Appeals described what the US Government had argued before it:

Both these cases were discussed in the 2006 Marty report (see paragraphs 150–161 of the report), the most relevant parts of which read as follows:

The relevant United Nations committees found Sweden responsible under Article 7 of the ICCPR, concluding that the treatment to which Mr Alzery had been subjected at Bromma Airport had been imputable to the State party and had amounted to a violation of Article 7 of the Covenant; that Sweden had breached its obligations to carry out a prompt, independent and impartial investigation into the events at Bromma Airport; and that the prohibition of refoulement, set out in that Article, had been breached in respect of both Mr Agiza and Mr Alzery.

USA Today reported that the Swedish Government had paid USD 450,000 to Mr Alzery in compensation for his deportation. The same amount had been agreed to be paid to Mr Agiza (‘Sweden compensates Egyptian ex-terror suspect’, USA Today, 19 September 2008).

The applicant further submitted copies of numerous articles published in Macedonian newspapers. The most relevant are cited below:

He also provided copies of articles published in US newspapers, which reported on ‘stress and duress’ techniques employed by the US in interrogating detainees at the US air base at Bagram in Afghanistan (‘Army Probing Deaths of 2 Afghan Prisoners’, Washington Post, 5 March 2003 and ‘Questioning Terror Suspects in a Dark and Surreal World’, New York Times, 9 March 2003). Other articles from US and British newspapers reported on the rendition to US custody of individuals suspected of terrorist-related activities prior to January 2004 (‘A CIA-Backed Team Used Brutal Means to Crack Terror Cell’, Wall Street Journal, 20 November 2001; ‘U.S. Behind Secret Transfer of Terror Suspects’, Washington Post, 11 March 2002; ‘Chretien Protests Deportation of Canadian: Prime Minister Calls U.S. Treatment of Terror Suspect ‘Completely Unacceptable’’, Washington Post, 6 November 2003; ‘The Invisible’, The Independent, 26 June 2003; and ‘Missing Presumed Guilty: where terror suspects are being held’, The Independent, 26 June 2003.

The applicant submitted articles in which journalists reported that the US Ambassador in Germany at the time had informed the German authorities in May 2004 that the CIA had wrongly imprisoned the applicant. They further reported that German Chancellor Angela Merkel had stated that the US Secretary of State Condoleezza Rice had admitted to her, in a private discussion, that the US had mistakenly abducted and detained the applicant. According to those articles, US representatives had declined to discuss anything about the case with reporters (‘Wrongful Imprisonment: Anatomy of a CIA Mistake’, The Washington Post, 4 December 2005; ‘German Man Sues CIA on claims of torture, El-Masri seeks damages after mistaken-identity ‘rendition’ case, NBC News, 6 December 2005; ‘Merkel Government stands by Masri mistake comments’, Washington Post, 7 December 2005; and ‘Germany Weighs if it Played Role in Seizure by U.S.’, The New York Times, 21 February 2006). The latter article made reference to an interview with Mr H.K. in which he stated:

Lastly, in 2007, the Canadian Broadcasting Corporation (CBC) reported that the Canadian Prime Minister was to announce a settlement of 10,000,000 United States dollars (USD) and issue a formal apology to a Mr Arar, a Canadian citizen born in Syria, who had been arrested in 2002 by US authorities at New York JFK Airport and deported to Syria. The Prime Minister had already acknowledged that Mr Arar had suffered a ‘tremendous injustice’ (CBC, ‘Ottawa reaches $10M settlement with Arar’, 25 January 2007). In 2010 The Guardian published an article about the alleged role of the United Kingdom (UK) in the rendition of suspects in which it was announced that former UK detainees in Guantánamo Bay might receive a very large payout from the UK government, in some cases at least one million pounds sterling (The Guardian, ‘Torture and terrorism: Paying a high price’, 17 November 2010).

The Government objected that the applicant had failed to comply with the six-month rule. They argued that he had applied to the domestic prosecuting authorities over four and a half years after the events complained of (the Government cited Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III; Artyomov v. Russia, no. 14146/02, §§ 113–118, 27 May 2010; and Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011). Between May 2004 and October 2008 the applicant had remained totally passive and displayed no initiative in informing the Macedonian law-enforcement authorities about the alleged events. Instead, he had pursued remedies in other jurisdictions. Furthermore, he ought to have known long before October 2008 that any criminal investigation in the respondent State would have been ineffective. In this connection they referred to the absence of any contact between him and the law-enforcement authorities of the respondent State, as well as the absence of State prosecution proprio motu, despite the fact that the prosecuting authorities had already been alerted about his case by their German counterparts. The last inquiries at international and national level, which had ended in January 2007, long before the applicant had submitted his criminal complaint in October 2008, had not led to any finding of fact which would have been of relevance to that complaint. His criminal complaint had not contained any new evidence capable of reviving the State's duty to investigate ‘his allegations.

Lastly, they argued that the applicant had not been diligent in pursuing the domestic avenues of redress. His lack of diligence was evident because he had taken no initiative in informing himself about the progress made in the investigation (the Government cited Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002). Moreover, he had failed to communicate Mr H.K.'s statement to the domestic authorities and to seek the institution of criminal proceedings by the public prosecutor. Had the applicant requested the prosecution of an identified perpetrator, he would have been allowed to take over the prosecution as a subsidiary complainant if the public prosecutor dismissed his complaint. He had had no such opportunity in the present case, given that his criminal complaint of October 2008 had been filed against an unidentified perpetrator. Furthermore, the applicant could not have challenged the decision dismissing his complaint.

The applicant submitted in reply that the respondent State had a positive obligation under the Convention to carry out an investigation of its own motion. The internal investigation undertaken by the Ministry of the Interior (see paragraphs 64–66 above) could not be regarded as effective and independent within the meaning of Articles 3 and 13 of the Convention. Moreover, he had had no possibility of knowing about that inquiry, given the failure of the authorities to contact him or make their inquiry public. From the moment he had returned to Germany in late May 2004 he had actively sought to obtain sufficient evidence to build an ‘arguable case’ to present to the national prosecuting authorities. The period of four and a half years between his release and the filing of the criminal complaint in October 2008 had not been excessive. On the contrary, that time had been entirely reasonable, considering that this was a complex case of disappearance, involving international intelligence cooperation, in which the US and Macedonian Governments had agreed to cover up the existence of a secret, multinational criminal enterprise. Accordingly, he had acted diligently and in compliance with the Court's practice. He had sought in timely fashion to initiate a criminal investigation, but the authorities had not responded expeditiously and instead had secretly rejected his complaint. He had further sought in vain information from the public prosecutor about the progress of the investigation. The public prosecutor had not notified him of her decision rejecting the complaint until 22 November 2010, fourteen months after his application had been lodged with the Court. Since the criminal complaint had been lodged against an unidentified perpetrator, he had been prevented from initiating a private prosecution.

The applicant submitted in conclusion that he had accordingly complied with the six-month time-limit, which had started to run on 23 January 2009, the date when the prosecution of the alleged offences had, according to him, become time-barred.

The Court reiterates that the Convention is an instrument for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory. This concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on respondent Governments, but also has effects on the position of applicants. Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 160, ECHR 2009…).

The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39 and 40, 29 June 2012, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of such acts or their effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).

The Court observes that the Government's objection that the application was out of time was twofold: firstly, that the applicant's criminal complaint was submitted to the domestic authorities too late and secondly, that the complaint had been an ineffective remedy. In this connection they suggested that the six-month time-limit should be regarded as having started to run when the applicant first became or ought to have become aware of the circumstances which rendered the available domestic remedies ineffective.

In order to answer the Government's admissibility objection, the Court must assess whether, in the particular circumstances of the present case, a criminal complaint was an effective remedy to be used by the applicant in order to seek redress for his Convention grievances. The answer to that question will be determinative for the calculation of the six-month time-limit.

In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof ‘beyond reasonable doubt’. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States' responsibility under the Convention. The specificity of its task under Article 19 of the Convention — to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention — conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).

Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 16 December 2008). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).

The Court has already found that these considerations apply also to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII; Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 9 October 2008, and Matayeva and Dadayeva v. Russia, no. 49076/06, § 85, 19 April 2011). Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see Öcalan v. Turkey [GC], no. 46221/99, § 90, ECHR 2005-IV, and Creangă, cited above, § 89).

The Court notes that the applicant's allegations are contested by the Government on all accounts. Having regard to the conflicting evidence submitted by the parties, the firm denial of the respondent Government of any involvement of State’ agents in the events complained of and the rejection of the applicant's criminal complaint, the Court considers that an issue arises as to the burden of proof in this case and in particular as to whether it should shift from the applicant onto the respondent Government.

In this connection it emphasises that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a ‘particularly thorough scrutiny’ (see, mutatismutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010) even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007). In other words, in such a context the Court is prepared to be more critical of the conclusions of the domestic courts. In examining them, the Court may take into account the quality of the domestic proceedings and any possible flaws in the decision-making process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 12 February 2009).

The Court observes first of all that the applicant's description of the circumstances regarding his alleged ordeal was very detailed, specific and consistent throughout the whole period following his return to Germany. His account remained coherent throughout the international and other foreign inquiries and the domestic proceedings and involved consistent information regarding the place, time and duration of his alleged detention in the former Yugoslav Republic of Macedonia and in the CIA-run detention facility, as well as the treatment to which he was allegedly subjected while in the hotel, during his transfer into the custody of CIA agents at Skopje Airport and in the ‘Salt Pit’ in Afghanistan. In addition to this, there are other aspects of the case which enhance the applicant's credibility.

In the first place, the Court notes that the applicant's account was supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities. In this connection the Court notes the following evidence:

On the basis of that evidence the Marty inquiry was able to conclude that the applicant's case was ‘a case of documented rendition’ (see paragraph 45 above) and that the Government's version of events was ‘utterly untenable’ (see paragraph 46 above). The final report of the Fava inquiry ‘condemned the extraordinary rendition of the German citizen Khaled El-Masri’ (see paragraph 49 above). Furthermore, the German Bundestag noted that the applicant's story was ‘credible as to the core facts of his detention in Macedonia and his transfer to Afghanistan, as well as his confinement there by United States forces’ (see paragraph 60 above).

Secondly, the applicant's inquiries in the respondent State revealed other relevant elements corroborating his story. In this context the Court draws particular attention to the letter from the Skopje Airport authorities issued on 18 June 2008 (see paragraph 67 above) confirming the Marty inquiry's findings regarding the route of the Boeing 737 aircraft with the tail number N313P. That document attested, for the first time, that the aircraft had landed at Skopje Airport without any passengers and that it had taken off carrying only one passenger. Other compelling evidence in support of the applicant was the expert report produced by Mr J.G.S., an investigator involved in the Marty and Fava inquiries, in which a detailed factual finding was made regarding events between the applicant's entry into the former Yugoslav Republic of Macedonia and his transfer into the custody of CIA agents.

Thirdly, the Court attaches particular importance to the relevant material (see paragraphs 98, 103, 106–127 above), which is already a matter of public record, issued by different fora disclosing relevant information about the ‘rendition programme’ run by the US authorities at the time. Even though this material does not refer to the applicant's case as such, it sheds light on the methods employed in similar ‘rendition’ cases to those described by the applicant.

Lastly, the Court refers to the written statement of Mr H.K., who was, at the relevant time, the Minister of the Interior of the respondent State and soon afterwards became Prime Minister. In the statement, which is the only direct evidence about the events complained of before the Court, the witness confirmed that the Macedonian law-enforcement authorities, acting upon a valid international arrest warrant issued by the US authorities, had detained the applicant, kept him incommunicado and under the constant supervision of UBK (State Intelligence Service) agents in a location in Skopje. He had later been handed over to the custody of a CIA ‘rendition team’ at Skopje Airport and had been flown out of the respondent State on a CIA-operated aircraft. His statement is a confirmation of the facts established in the course of the other investigations and of the applicant's consistent and coherent description of events.

It is true that the domestic authorities were not given the opportunity to test the evidence of Mr H.K. Nor has the Court itself had the opportunity to probe the details of his statement in the course of the proceedings before it. However, this does not necessarily diminish its probative value, nor does the fact that it came to light after the domestic prosecuting authorities had already rejected the applicant's criminal complaint prevent the Court from taking it into consideration (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008).

In principle the Court will treat with caution statements given by Government ministers or other high officials, since they would tend to be in favour of the Government that they represent or represented. However, it also considers that statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question, are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavourable light. They may then be construed as a form of admission (see in this context, mutatis mutandis, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, ICJ Reports 1986, p.14, § 64).

The Court therefore considers that the evidence produced by this witness can be taken into account. In this connection it notes that the Government has not presented the Court with any reason to cast doubt on its credibility.

In view of the above, the Court is satisfied that there is prima facie evidence in favour of the applicant's version of events and that the burden of proof should shift to the respondent Government.

However, the Government have failed to demonstrate conclusively why the above evidence cannot serve to corroborate the allegations made by the applicant. They have not provided a satisfactory and convincing explanation of how the events in question occurred. Nor have they provided a plausible explanation as to what happened to the applicant after their authorities had taken control of him at the Tabanovce border crossing on 31 December 2003. No credible and substantiated explanation has been given by the Government to rebut the presumption of responsibility on the part of their authorities to account for the applicant's fate since his apprehension on 31 December 2003. The evidence submitted by the Government (see paragraphs 41 and 65 above) is insufficient in this respect. In this connection it is noteworthy that no explanation was given by the Government as to why it had not been made available earlier (see paragraph 45 above and paragraph 113 of the 2006 Marty report). Furthermore, the Government neither commented on nor submitted any objection to the expert report submitted by Mr J.G.S. They further failed to produce the documents regarding the applicant's case held by the Ministry of the Interior to which Mr H.K. had referred in his statement (see paragraph 74 above). Neither was any written material in this context submitted to the Court. Lastly, the investigation which ended with the rejection of the applicant's complaint was inconclusive and the Court is unable to draw any benefit from its results.

In such circumstances, the Court considers that it can draw inferences from the available material and the authorities' conduct (see Kadirova and Others v. Russia, no. 5432/07, §§ 87 and 88, 27 March 2012) and finds the applicant's allegations sufficiently convincing and established beyond reasonable doubt.

The applicant stated that his unlawful solitary incommunicado detention and interrogation for twenty-three days in the hotel, combined with repeated threats and prolonged uncertainty as to his fate, violated his rights under Article 3 of the Convention. Even without direct physical assaults, the cumulative and acute psychological effects of anguish and stress had been intentionally used for the express purpose of breaking his psychological integrity for the purpose of interrogation, and had been sufficient to drive him to protest by way of a hunger strike for ten days.

He further argued that the respondent State had been responsible for the treatment to which he had been subjected during his transfer into the CIA's custody at Skopje Airport because its agents had actively facilitated and failed to prevent that operation. On that occasion, he had been subjected to brutal and terrifying treatment which had been intentionally designed to induce ‘capture shock’ and break his will for the purpose of subsequent interrogation. The violence used to transfer him to the CIA plane had been out of all proportion to any threat that he had posed, and had been inflicted for the purpose of debasing him or breaking his spirit. His treatment both in the hotel and at Skopje Airport amounted to torture.

Furthermore, he submitted that the Macedonian authorities had been under an obligation, when handing him to the CIA, to assess the risk of his ill-treatment in Afghanistan and to obtain appropriate diplomatic assurances. However, they had failed to do so despite the fact that there had been ample publicly available evidence of such ill-treatment. The respondent State had accordingly been responsible under Article 3 of the Convention.

Lastly, the applicant submitted that the domestic authorities had conducted a cursory and grossly inadequate investigation into his arguable allegations. Despite calls from a plethora of international bodies and his complaints, the respondent State had failed to conduct a prompt, impartial and effective investigation, as required under this Article.

The Government repeated their position of complete denial of the applicant's allegations of being ill-treated. They further challenged the credibility of the expert report of 5 January 2009, which, according to them, had not been conclusive regarding the applicant's state of health (see paragraph 36 above). For these reasons they required that the Court consider it with the ‘utmost reserve’.

They further conceded that the investigation carried out by the prosecuting authorities had not been effective, but contended that this was due to the late submission of the applicant's criminal complaint and the fact that it had been filed against an unidentified perpetrator.

The UNHCHR submitted that the right to the truth was an autonomous right triggered by gross violations, as in the case of enforced disappearances. This right was also embodied in Article 13 and woven into Articles 2, 3 and 5 of the Convention. In enforced disappearances cases, the right to the truth was a particularly compelling norm, in view of the mystery surrounding the fate and whereabouts of the victim, irrespective of the eventual reappearance of the victim. Knowing the truth about gross human rights violations and serious violations of humanitarian law afforded victims, their relatives and close friends a measure of satisfaction. The right to the truth inured to the benefit of the direct victims of the violation, as well as to their relatives and to society at large. Rights holders were entitled to seek and obtain information on various issues, namely the identity of the perpetrators, the progress and results of an investigation and the circumstances and reasons for the perpetration of violations. On the other hand, the right to the truth placed comprehensive obligations on the State, including duties (1) to carry out an effective investigation; (2) to give victims and their relatives effective access to the investigative process; (3) to disclose all relevant information to the victims and the general public; and (4) to protect victims and witnesses from reprisals and threats. Lastly, the UNHCHR argued that the right to the truth was recognised in international law (the Convention on the Protection of All Persons from Enforced Disappearance) and the jurisprudence of the Inter-American Court and the African Commission on Human and Peoples' Rights.

Interights submitted that the present case presented an opportunity for the Court to recognise as impermissible the system of violations which had become known as ‘extraordinary rendition’ and to determine the State's responsibility under the Convention. The treatment of the rendered persons in preparation for or during the rendition process (including so-called ‘capture shock’ treatment) and the use of coercive interrogation methods might amount to torture and/or ill-treatment. Extraordinary rendition practices inherently involved the removal of a person from one State to another where there was a real risk of torture or inhuman or degrading treatment. Such removal was prohibited by the principle of non-refoulement, which was recognised in the Court's case-law (Interights referred to Soering v. the United Kingdom, 7 July 1989, Series A no. 161, and Saadi v. Italy, cited above). Under the non-refoulement principle, responsibility for complicity, participation or other forms of cooperation in ‘extraordinary renditions’ would arise where the State authorities knew or ought to have known that the violations involved in renditions were being committed. In parallel to the ‘accomplice liability’, under general international law a State could be held responsible where it rendered aid or assistance to another State in the commission of an internationally wrongful act (‘accessory responsibility’). The failure to prevent such violations was the most flagrant where the State had given its consent to the acts of foreign agents violating the rights at stake. In addition, acquiescence or connivance in the acts of the foreign agents might engage the State's responsibility. After the rendition had taken place, the State had an obligation to conduct a prompt and effective investigation into allegations of secret detention and transfer, and to provide reparation, including compensation for non-pecuniary damage flowing from the breach.

Redress stated that an investigation in the context of allegations of extraordinary rendition must be prompt, independent, thorough and capable of leading to the identification and prosecution of the persons responsible; must provide for public scrutiny and victim participation; and must afford victims access to information in order to satisfy their right to the truth. The obligation to investigate was incorporated in both Articles 3 and 5 of the Convention. National security considerations could not operate so as to bar a victim from access to such information. If national security concerns were allowed to prevail over the victim's right of access to information, the non-derogable and absolute character of Article 3 and the prohibition of unacknowledged detention would be undermined. In this connection it referred to the Council of Europe's Guidelines of 30 March 2011 on eradicating impunity for serious human rights violations (see paragraph 105 above), according to which ‘impunity for those responsible for acts amounting to serious human rights violations inflicts additional suffering on victims’. An adequate remedy and reparation must include recognition of, and respect for, the victims of alleged breaches of Articles 3 and 5 of the Convention, so that they, their families and society, as a whole, could know the truth regarding the violations suffered. Besides compensation, other important components which addressed the long-term restorative aims of reparation must also be provided, including satisfaction (acknowledgment of the breach, an expression of regret or a formal apology), guarantees of non-repetition and rehabilitation. In this latter connection, Redress submitted an expert report of 28 March 2011 in which Dr M. Robertson, a chartered clinical psychologist, explained the psychological benefits for the victim of the public disclosure of the truth. According to her, public recognition of the truth and proper acknowledgment through some form of redress could play an integral role in the survivor's recovery. Conversely, if the truth remained hidden and the perpetrators walked free, that could compound the survivor's sense of helplessness and struggle to create meaning and obtain closure.

AI and the ICJ submitted that the present case concerned a ‘US-led ‘secret detentions and renditions system’, a large-scale, organised cross-border system that operated in disregard of national laws, as well as international legal obligations, without any judicial or administrative process, that depended on the co-operation, both active and passive, of many States’. That system was characterised by the enforced disappearance of individuals, which constituted a violation of the right to freedom from torture and inhuman or degrading treatment or punishment. Article 3 of the Convention entailed non-refoulement obligations enjoining Contracting Parties from acting — and/or omitting to act — in ways that would result in the removal of any individuals from their jurisdiction when the Contracting Parties knew or ought to have known that their removal would expose them to a real risk of ill-treatment.

Lastly, they maintained that the right to an effective investigation, under, inter alia, Articles 3 and 5, read together with Article 13, entailed a right to the truth concerning violations of Convention rights perpetrated in the context of the ‘‘secret detentions and renditions system’‘. This was so not only because of the scale and severity of the human rights violations concerned, but also in the light of the widespread impunity in respect of these practices and the suppression of information about them which persisted in multiple national jurisdictions.

In view of the available material, the Court considers that the applicant's complaints under this Article raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible.

The Court will first examine the applicant's complaint that there was no effective investigation into his allegations of ill-treatment.

The Court notes that the complaints under this Article are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

According to the Court's case-law, the notion of ‘private life’ is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. The Court further recognises that these aspects of the concept extend to situations of deprivation of liberty (see Raninen v. Finland, 16 December 1997, § 63, Reports 1997-VIII). Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as ‘the very essence of the Convention is respect for human dignity and human freedom’ (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members of a family of each other's company constitutes a fundamental element of family life (see, mutatis mutandis, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130). The Court reiterates that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see Kroon and Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C).

Having regard to its conclusions concerning the respondent State's responsibility under Articles 3 and 5 of the Convention, the Court considers that the State's actions and omissions likewise engaged its responsibility under Article 8 of the Convention. In view of the established evidence, the Court considers that the interference with the applicant's right to respect for his private and family life was not ‘in accordance with the law’.

Accordingly, it finds that in the present case there has been a violation of Article 8 of the Convention.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.