El-Masri v the former Yugoslav Republic of Macedonia  ECHR 2067 (13 December 2012) Summary
The European Court of Human Rights held the former Yugoslav Republic of Macedonia responsible for the "extraordinary rendition" of a German citizen, which involved his transfer into the custody of United States authorities, unlawful detention and ill-treatment amounting to torture.
On 31 December 2003, the applicant travelled from Germany to the town of Skopje. He was questioned at the Serbian/Macedonian border, when suspicion arose as to the validity of his German passport. He was then detained for 23 days in a Skopje hotel, during which he was interrogated regarding possible links with Islamic organisations including Al-Qaeda, threatened with a gun and refused contact with the German embassy. On 23 January 2004, he was taken to Skopje Airport. There, he was beaten, stripped naked and sodomised with an object. He was later made to wear a nappy and, while shackled and hooded, taken to a waiting aircraft. During the flight, he was restrained and forcibly anaesthetised.
The applicant was transported to a facility operated by the United States CIA in Afghanistan. During a four month detention, he was interrogated and confined to a concrete cell. In protest, the applicant commenced a hunger strike in March 2004. On 28 May 2004, he was flown to Albania and subsequently deported to Germany.
Following his return, a Committee of Inquiry appointed by the German Federal Parliament investigated the applicant's account of his extraordinary rendition. In a report published in 2009, the Committee concluded that the core facts of his account were supported by convincing evidence.
In December 2005, the American Civil Liberties Union filed a claim on the applicant's behalf against unknown CIA agents and a former Director of Central Intelligence. It alleged that his detention and treatment contravened the Fifth Amendment right to due process and international legal norms. Before a United States District Court and the Court of Appeals for the Fourth Circuit, the United States succeeded in having the claim dismissed, based on the State secrets privilege. The Supreme Court refused to review the case in October 2007.
In 2008, the applicant lodged a complaint with the public prosecutor in Skopje against unidentified State officials. That complaint was ultimately rejected as unsubstantiated. Apart from seeking information from the Ministry of the Interior, the public prosecutor did not take any other investigative measures, such as interviewing the applicant or employees working at the Skopje hotel at the relevant time.
In the European Court of Human Rights, the respondent Government denied the applicant's account. It submitted that the applicant's only contact with State agents occurred on the date of his entry into the country. It also submitted that the applicant had remained in the country by his own choice between 31 December 2003 and 23 January 2004, after which he had freely departed.
The Court accepted that a large amount of indirect evidence supported the applicant's account, including aviation logs, scientific testing of the applicant's hair follicles which confirmed a period of food deprivation, witness statements and published reports. As the respondent Government failed to demonstrate why that evidence could not corroborate the applicant's case, his account was held to be established beyond reasonable doubt.
The Court held that the respondent Government violated the European Convention for the Protection of Human Rights and Fundamental Freedoms:
Prohibition of torture and inhuman or degrading treatment (article 3)
The applicant's prolonged ill-treatment in the Skopje hotel, while not involving physical force, caused emotional and psychological stress which was inhuman and degrading. His ill-treatment at Skopje Airport amounted to torture, for which the respondent Government was directly responsible. The respondent Government was also responsible for transferring the applicant into the custody of US authorities despite a real risk of him being treated contrary to article 3. It knew the destination of the applicant's flight, was not provided with a legitimate extradition request or arrest warrant and, despite media articles and reports in the public domain, failed to seek assurances that the applicant would not be ill-treated. Additionally, the respondent Government failed to effectively investigate the complaint brought to the public prosecutor's attention. Without an obligation to effectively investigate, the Court noted that the general prohibition would be practically ineffective.
Right to liberty and security (article 5)
The Court observed that although the prevention of terrorist offences presents authorities with particular problems, that does not mean the authorities have carte blanche to arrest and detain suspects. Detaining the applicant in the Skopje hotel without access to legal or consular assistance, and without any court authorisation, was unlawful and arbitrary. By actively facilitating his transfer to Afghanistan, the respondent Government was also responsible for his detention between 23 January and 28 May 2004. Further, it failed to effectively investigate the applicant's complaint of arbitrary detention.
Right to respect for private and family life (article 8)
The notion of "private life" was noted to be a broad one which may cover "the moral and physical integrity of the person". Article 8 also protects a right to personal development, to develop relationships with other human beings and the outside world. The Court held that deprivation of liberty may contravene these aspects of article 8 and that, given the violations of articles 3 and 5, the respondent Government had also unlawfully interfered with the applicant's right to respect for his private and family life.
Additionally, by failing to undertake an effective criminal investigation, the respondent Government denied the applicant an effective remedy (in violation of article 13 of the Convention). The Court awarded the applicant EUR 60,000 in non-pecuniary damages.
This decision reflects a growing body of international case law, recommendations and reports concerning extraordinary rendition. Most recently, the Open Society Foundations published a report identifying 54 national governments (including Australia) alleged to have participated or been complicit in the CIA's extraordinary rendition operations. It is notable that, in the view of the Court, States that transfer persons into the custody of US authorities without appropriate safeguards and assurances may be found to have knowingly exposed those persons to a real risk of ill-treatment and unlawful detention.
The human rights articulated in articles 3, 5 and 8 of the Convention are reflected in, respectively, sections 10, 21 and 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter expressly provides that courts may have regard to international law and the jurisprudence of foreign courts when considering the compatibility of a statutory provision with human rights. Accordingly, the approach adopted in the Court's consideration of the respondent Government's obligations under articles 3, 5 and 8 of the Convention may provide guidance to courts and tribunals considering the scope, operation and application of relevant provisions of the Charter.
The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/2067.html.
Hayden Teo is a lawyer at Allens.