Council of Europe asks Romanian authorities to engage in a more effective dialogue with the U.S. in the Al Nashiri CIA detention case

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During its quarterly meeting in Strasbourg to oversee the execution of judgments and decisions from the European Court of Human Rights, held from 14 to 16 September, the Council of Europe’s Committee of Ministers has adopted the following decision on the case Al Nashiri v. Romania.

In the present judgment the European Court established Romania’s responsibility under the Convention on account of the authorities’ knowledge of and involvement in the implementation of the CIA “High-Value Detainee Programme” and found serious violations of several Convention rights by Romania in the context of an “extraordinary rendition” operation, which enabled the United States authorities to bring the applicant illegally under United States jurisdiction.

The Committee of Ministers considered that the situation calls for the Romanian authorities to engage in a more effective dialogue with the United States authorities to seek to remove the risks incurred by the applicant and thus fulfill their obligation under Article 46 of the Convention; welcomed the recent information provided on the action taken by the Romanian authorities in August 2021 to request again diplomatic assurances; strongly urged them to continue their diplomatic action without delay and exhaust every possible avenue to make it effective, including engaging with the United States authorities at a higher level.

“The Committee recalled further that the consequences for the applicant of the violations of the Convention found by the Court have not been remedied as he remains at risk of a flagrant denial of justice in the proceedings before a United States military commission, as shown by the recent worrying developments in his trial, in which use of evidence obtained during his interrogations by the CIA has been admitted, albeit provisionally, and at risk of the death penalty, expressed their deepest concern at the grave risks Mr Al Nashiri continues to incur”.

The Council of Europe also  insisted, in light of the situation, including the worrying developments in Al Nashiri’s trial, that in addition the Romanian authorities envisage other avenues which would enable them to seek removal of the risks, while requesting them to give serious consideration to intervening asamicus curiae in any relevant proceedings pending in the United States and inform the Committee accordingly; reiterated their invitation to the Council of Europe member States concerned to provide the Romanian authorities with all possible assistance.

“As regards the domestic criminal investigation into the serious human rights violations established, now terminated without charge, the Committee deeply regretted that the available information does not permit the conclusion to be drawn that after the Court’s judgment, all possible means were deployed to seek to elucidate the relevant circumstances to the degree required to meet the domestic standard of proof; in this respect, noted with concern that leads or evidence which may have enabled the authorities to corroborate the Court’s findings appear to have been discarded and that no further efforts have been made to seek legal assistance from the United States authorities or to consider alternative measures to overcome the effects of the United States’ refusal to support Romania’s first such request, made before the judgment. It also deplored, in these circumstances, the divergent conclusions of the domestic proceedings and those under the Convention as to the operation of a CIA secret detention facility on Romanian territory, the applicant’s transfer to and from Romania and his secret detention and ill treatment there; also deplored the authorities’ omission, despite the Committee’s repeated calls, to ensure that the results of the investigation are brought to the public’s knowledge and thus maintain a sufficient degree of public scrutiny over it”.

As general measures, the Council of Europe’s Committee of Ministers

  1. expressed their great satisfaction at the legislative reform recently enacted by Parliament fully disapplying the statute of limitations to the crime of torture and at the messages conveyed by the Minister for Foreign Affairs of Romania in February and in June 2021 underlining the unacceptability of arbitrary detention and the imperative of ensuring that State agents responsible are held accountable as well as Romania’s firm opposition to torture and other forms of ill treatment and its fundamental commitment to preventing and eliminating the same;
  2. considered that through Parliament’s decisive action to guarantee that there will be no impunity for perpetrators of acts of torture on account of statutory limitation and the Minister’s messages, the Romanian authorities, at a high level, have now given a clear public message as to the unacceptability of and zero tolerance towards arbitrary detention and torture and welcomed their response to the Committee’s calls in this regard;
  3. underlined, however, again that to guarantee non-repetition of similar abuses and grave human rights violations, it remains imperative that real and sustained efforts are made to establish the truth about what happened, so that the applicant may receive “an accurate account of the suffering endured and the role of those responsible for his ordeal” and the public, an account of how such acts revealing blatant disregard of the legal framework governing the actions of State agents, including the obligations under the Convention, came to happen;
  4. requested therefore the authorities, in the event that they cogently establish that resuming the criminal investigation is not a viable option, to inform the Committee how they intend to ensure that the circumstances of Romania’s knowledge and involvement in the implementation of the CIA “High-Value Detainee Programme” are further elucidated and they thus secure the right to the truth in this case;
  5. requested the authorities to submit information on all the remaining questions by 15 December 2021 at the latest and decided to resume consideration of this case at their Human Rights meeting in March 2022.

Abd al-Rahim al-Nashiri, born January 5, 1965, is a Saudi Arabian citizen accused of being the mastermind of the bombing of USS Cole and other maritime terrorist attacks. He is alleged to have headed al-Qaeda operations in the Persian Gulf and the Gulf states  prior to his capture in November 2002 by the CIA’s Special Activities Division.

Al-Nashiri was captured in Dubai in 2002 and held for four years in secret CIA prisons known as “black sites” in Afghanistan, Thailand, Poland, Morocco, and Romania, before being transferred to the Guantanamo Bay detention camp.

On July 24, 2014, the European Court of Human Rights (ECHR) ruled that Poland violated the European Convention on Human Rights when it cooperated with the U.S. by allowing the CIA to hold and torture al-Nashiri on its territory in 2002–2003.

On the 31 May 2018, in the Case of Al Nashiri v. Romania (Application no. 33234/12) the Court claimed Romania was complicit in CIA rendition and had suffered various ECHR violations.

The court therefore found that Al Nashiri had been within Romania’s jurisdiction and that the country had been responsible for the violation of his rights under the convention. It also recommended that Romania conclude a full investigation into Mr Al Nashiri’s case as quickly as possible and, if necessary, punish any officials responsible. The country should also seek assurances from the United States that Mr Al Nashiri will not suffer the death penalty, ECHR argued.

On 31 May 2018, the ECHR ruled that Romania and Lithuania also violated the rights of Abu Zubaydah and Abd al-Rahim al-Nashiri in 2003-2005 and in 2005-2006 respectively, and Lithuania and Romania were ordered to pay 100,000 euros in damages each to Abu Zubaydah and Abd al-Nashir.

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