CIA programme of extraordinary rendition and secret detention

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Al Nashiri v Poland (App. No 28761/11) and Husayn (Abu Zubaydah) v Poland (App No 7511/13)

The cases concern the violation of a number of Convention rights arising from the fact that the applicants were victims of a secret “rendition” operation. The European Court found it established beyond reasonable doubt that the applicants arrived in Poland on board Central Intelligence Agency (CIA) rendition aircraft on 5 December 2002; were detained in a CIA detention facility in Stare Kiejkuty where they were subjected to ill-treatment and torture; and were subsequently transferred from Poland, respectively in June and September 2003.

The Court found that their transfer from Poland exposed them to a real risk of a flagrant denial of justice due to the possibility they would face trial before United States’ military commissions using evidence obtained under torture. In this context, the Court also noted that no case against Mr Abu Zubaydah had been listed for trial and found that his indefinite detention without charge in itself amounted to a flagrant denial of justice. Mr Al Nashiri was charged with capital offences before the military commissions and the Court found that he faced a real risk of being subjected to the death penalty.

The cases were briefed in 2021 by Mikołaj Pietrzak, counsel for Mr. Al Nashiri, and Helen Duffy, counsel for Mr. Abu Zubaydah, Director at Human Rights in Practice.