Judicial Condemnation of Extraordinary Rendition: El-Masri v. The Former Yugoslav Republic of Macedonia

On 13 December 2012, the Grand Chamber of the European Court of Human Rights delivered its judgment in El-Masri v. The former Yugoslav Republic of Macedonia. Fiona de Londras has set out the background to the case in her post here.

The decision has already been praised by NGOs and some international organisations. Jean-Claude Mignon (President of the Parliamentary Assembly of the Council of Europe) declared: ”This judgment can be called historic: it is the first condemnation, by an international court, of the CIA practice of renditions and secret detentions, which the Court has likened to enforced disappearance and cruel and inhuman treatment’. Amnesty International has also emphasised the importance of this case by saying that ‘today’s ruling was significant because for the first time it holds a European state accountable for its involvement in the secret US-led programme.’

This judgment is not surprising. The Court unanimously found violations of Article 3 of the Convention (prohibition of torture) both through torturing the applicant and not effectively investigating the torture. The Court also found violations of Article 5 (right to liberty and security for detention) both in Macedonia and Afghanistan as well as violations of Article 8 – right to private life and Article 13 – lack of effective remedies.

The litigation in this case was closely monitored by a number of international human rights NGOs. Interights, Amnesty International, International Commission of Jurists, Redress submitted their third party interventions. The Court has clearly taken their submissions into account and condemned not only the applicant’s treatment but more generally practice of extraordinary rendition. The Court for example pointed out that

Having regard to the parties’ observations, and especially the submissions of the third-party interveners, the Court also wishes to address another aspect of the inadequate character of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what had happened. The issue of “extraordinary rendition” attracted worldwide attention and triggered inquiries by many international and intergovernmental organisations, including the UN human rights bodies, the Council of Europe and the European Parliament. The latter revealed that some of the States concerned were not interested in seeing the truth come out. The concept of” State secrets” has often been invoked to obstruct the search for the truth. State secret privilege was also asserted by the US government in the applicant’s case before the US courts. (para 191)

This judgment of the ECtHR is a strong message to the Member States that their cooperation in matters of terrorism prevention must comply with human rights obligations.

This case is also significant for more technical aspects of the Court’s jurisprudence, namely, admissibility criteria and fact-finding principles. In this case, the Court applied the well-known doctrine that rights should be practical and effective pursuant to the six-month rule (para. 134). This was not the first time when the Court applied a flexible approach to admissibility in cases of high constitutional importance.

Another important aspect of this case concerns evaluation of facts. The Court has very limited fact-finding capabilities. Having said that, in the great majority of cases there is no need to investigate facts and they are not disputed. The El-Masri case is an exception. In this case, the Macedonian authorities completely denied any involvement in ill-treatment of the applicant. The Court reiterated that a strong presumption of fact will arise in respect of injuries and death occurring during the detention. It is worth mentioning that the NGOs submissions and a report prepared by Dick Marty a former member of the PACE were seen as important sources of factual evidence by the ECtHR. The Council of Europe has prepared a very useful chronology of its investigation of extraordinary rendition. This chronology is available here.

Finally, apart from the legal and symbolic significance of this decision I would like to make a realpolitik argument. It seems that the ECtHR push human standards forward having in mind political reality. This judgment was delivered against the former Yugoslav Republic of Macedonia – a country whose name has been disputed. It is very unlikely that the FYROM had a chance to say ‘No’ to the US in this case. One should not forget that Macedonia is keen for diplomatic support. It was a safe bet for the ECtHR to deliver this judgment against the FYROM. By killing two birds with one stone, the Court managed to establish a rule strongly condemning extraordinary rendition without a danger of being told off by a more influential state. There are comparable cases against other Contracting Parties.

This case also shows that the ECtHR has a strategy to achieve its goals: it is not a coincidence that this judgment was a strongly-worded unanimous statement against a Contracting Party that would not threaten the stability of the Strasbourg system.

Judicial Condemnation of Extraordinary Rendition: El-Masri v. The Former Yugoslav Republic of Macedonia

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